Opposition — Tison v. Arizona

RECEIVED

DEC? 1981

OFFICE OF THE CLERK

NO. 81-5634 SUPREME COURT, U.S. |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1961

RICKY WAYNE TISON and

RAYMOND CURTIS TISON,

Petitioners,

v.

STATE OF ARIZONA,

Respondent.

RESPONSE TO THE ORIGINAL and CONTINUED

JOINT PETITION FOR WRITS OF CERTIORARI

TO THE SUPREME COURT OF ARIZONA

ROBERT K. CORBIN

The Attorney General

BRUCE M. FERG

~ Assistant Attorney General

315 State Government Building

402 West Congress

Tucson, Arizona 85701-1367

Telephone: (602) 628-5501

Attorneys for Respondent

TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES ii-iv

REASONS FOR DENYING THE WRIT:

I

THIS COURT'S DECISION IN LOCKETT v. OHIO

LEAVES NO DOUBT THAT THE DEATH PENALTY —

CAN BE CONSTITUTIONALLY APPLIED TO A NON-

TRIGGERMAN, SO LONG AS HIS DEGREE OF PAR-

TICIPATION IN THE CRIME HAS BEEN CONSIDERED,

AND PETITIONERS’ INVOLVEMENT IN THE DEATHS

OF THE FOUR MEMBERS OF THE LYONS FAMILY WAS

SO DEEP AND GROSS THAT THEY WERE PROPERLY

SENTENCED TO DEATH. * >. * * > >. * > J * * * . > 1

11

THE ARIZONA SUPREME COURT CORRECTLY CONCLUDED

THAT PETITIONER RICKY TISON'S LAWYER HAD

WAIVED ANY ISSUE OF THE ADMISSIBILITY OF

PETITIONER'S STATEMENTS UNDER MIRANDA v.

ARIZONA, AND THE STATEMENTS WERE SHOWN

TO HAVE BEEN VOLUNTARILY MADE, SO THERE

IS NO ISSUE REQUIRING ACTION BY THIS COURT. .. 11

A. EXISTENCE OF A WAIVER. ... q⁊ꝰbR 12

B. WAIVER STANDARD. * * * * * * >. * * * * * 16

E. VOLUNTARINESS * * * * * * * * * * * * * * 17

THE SUPFICIENCY OF THE INSTRUCTIONS RESTS ON AN

INTERPRETATION OF STATE LAW, SO THE QUESTION IS

NOT APPROPRIATE FOR REVIEW BY THIS COURT, AND IN

ANY EVENT THE CONSPIRACY INSTRUCTIONS WERE

ADEQUATE. * * * * * * * * * * * * * * * * * * * 19

Iv

THIS COURT ALREADY HAVING DEALT WITH THE

LIABILITY OF COCONSPIRATORS IN PINKERTON v.

UNITED STATES, THERE IS NO NEED POR FURTHER

EXPLORATION OF THE ISSUE, ESPECIALLY AS THE

COMPLICITY OF PETITIONERS IN EVERYTHING WHICH

OCCURRED IS SO GROSS AND SO PLAIN. ....... 20

CONCLUS ION * * * * * * * * * * * * * * * * * * * * 20

CERTIFICATE or SERVICE * * * * * * * * * * * * * * * 21

TAPLE OF CASES AND AUTHORITIES

CASES PAGE

Bullock v. State,

NI So. 3d För (Miss. 1980) 11

Coker v. it

8. (1977) 7

curs Vv. 4

. (1973) 19

Edwards v. Arizona,

n L. Fd. 2d 378 (1981) 11, 13

Enmund v. Florida, 399 80. 2d 1362 (1981)

cert. granted Wo. 81-5321 3, 4, 10

Estelle v. Williams,

in (1576) ‘ 17

Gr v. Georgia,

8 U.S. 183 (1976) 7

Green v. Georgia,

142 US. 52 11979 7

27473 v. Washington,

“Oe * 516 (1963) 18

rents Mississippi,

U.S. Al Ass) 16

Legare v. State,

0 „ 257 8. E. 2d 247 (1979) 10

Lockett v. Ohio,

J. (1978) a. 3B, 7

Malinski v. New York,

. 5) 17, 18

Michi v. Mosley,

723 U-. 9 1855 11

Miranda v. Arizona, 11, 12, 13, 14, 15, 16, 17

Mullan v. Wilbur,

121 2 1675) 19

On Lee v. United States,

. „ kn. (1952) 16

Picard v. Contor,

5. (1971) 17

Pinkerton v ited States

— i Sa tL Tisey 20

Prather v. State,

e (Okla. Cr. App. 1943) 11

- 11

TABLE OF CASES AND AUTHORITIES

“(Continued)”

Rhode Island v. Innis,

State v. Andrews,

. (Utah 1977)

State v. Arnett,

z. „ 46, 579 P. 2d 542, 550 (1978)

State v. pichor.

z. 3, 268, 576 P. 2d 122, 127 (1978)

State v. Brewer,

oe 89 (Indiana 1981)

State v. Cabrera,

z. „ 560 P. 2d 417 (1977)

State v. *

27 Ariz. . 354, 555 P. 2d 111 (1976)

State v. Edwards,

127 Ariz. 206, 212, 594 P.24 72, 78 (1979)

State v. Gall r,

97 Ariz. I, 336 5. 2d 241 (1964)

State v. Goodsoe,

107 Ariz. 367, 489 . 2d 4 (1971)

10, 11

State v. Greenawalt, 128 Ariz. 150, 168-170, 624 P.24

b. S. L. w. 3250

State v. Miller,

Zz. 397, 598, 322 F. 2d 23, 24 (1974)

State v. Richmond, 114 Ariz. 186, 560 . 2d 41 (1976)

cert. denied 433 u.s. 915 (1977)

State v. Stone,

z. 304, 594 P. 2d 558 (Ct. App. 1979)

State v. Watson, 120 Ariz. 441, 447, 586 P. 24

978)

cert. denied 440 U.S. 924

State v. Winters,

z. - 508, 556 P.24 809 (1976)

United States v. Duvall,

— F. 1976)

cert. denied 426 U.S. 950

Wainwri v. 9

oe 7)

ARIZONA REVISED STATUTES ANNOTATED

$$13-454(F) (3) (4)

UNITED STATES CONSTITUTION

Fifth Amendment

— iii -

81) cert. denied U.S. „ 30

16

18

16

10

12

UNITED STATES CONSTITUTION

Sixth Amendment

Fourteenth Amendment

I WHARTON'S CRIMINAL LAW AND PROCEDURE

(Anderson ed. 1957) §97 at 194-196

Essentially identical evidence was introduced

at the separate trials of the two Petitioners. Unless

ctherwise designated, all transcript references are

to the trial of Ricky Tison.

12

17

20

4. THIS COURT'S DECISION aH SE CONSTI OS LEAVES NO DOUBT

THAT THE DEATH PENALTY ONALLY APPLIED

TOA

TION

In approaching the death penalty issue Petitioners have

set the stage with a substantially erroneous summary of the

case, that “It is undisputed that they did not fire the fatal

shots, intend the fatal results, or control the fatal events".

(Original Petition at 15.) In fact, all three of those

propositions have been heavily disputed. To begin with, the

only direct evidence“ of who fired the fatal shots was from

Petitioners themselves, hardly an unbiased source. Nothing

would be less surprising than to discover two young murderers

seeking to lay the blame on Gary Tison (who, though their

father, was already dead and had been previously convicted

of a murder committed in the course of an escape) and Randy

Greenawalt (a convicted double murderer whom nobody would

believe). The victims were killed by blasts from two shot-

guns, one of them a 16 gauge. A fivearms expert from the

F. 5. 1. testified that the 16 gauge shells at the death scene

bore markings consistent with having been fired from a gun

marked as Exhibit 24. (R.T. Vol. V at 524-525.) Exhibit 24

was a weapon Ricky Tison had left with one Charles Whittington,

a gunsmith, for purposes of having it shortened, and later

retrieved. (R.T. Vol. I at 112-113.) Also interesting was

the presence by the death car of two expended .45 shells

Exhibit 52A, (Vol. II at 206.) They were fired,to an absolute

certainty, from Ricky Tison's single-action Colt revolver

(Exhibit 29), which he had bought from Whittington. (Vol. v

at 528.) Ricky obviously set great store by this pistol, for

he took it with him when he ran half-clothed from the wrecked

van. (Vol. II at 328-29, 331-33.) Though the resting place

of the slugs from the .45 is not shown in the record, the

presence of the spent cartridges from Ricky's pergonal

handgun at the crime scene is strongly suggestive of active

participation in the events there. This gun is particularly

important, because Ricky Tison was concerned enough to lie

about it. He admitted being armed with it during the Lyons

episode. (Summary of Jan. 26, 1979 statement, attached to

Presentence Report, at 1.) He claimed it was never fired:

Q. Okay. Was there any other weapon fired

out there except those two shotguns?

A. Wo. They were the only two shot.

(Transcript of Brown interview at 47.)

Yet we know it was fired there, because of the expended

cartridges found at the scene.

Second, Petitioners’ claimed lack of intent that people

should die has never been conceded, and is clearly negated by

the evidence. Several examples will suffice. Both brothers

indisputably cooperated in a conspiracy to break two known

murderers out of prison. To do so, they utilized sawed-off

shotguns and a pistol with a silencer; a silencer has no

purpose other than to make killing easier by concealing the

noise generated by shooting. Ricky spoke to his brother after

their capture about a .45 automatic: “He said he lost the

pistol when the van went out of control and he didn’t get a

chance to use it.” (R.T. Vol. IIT at 484.) A psychological

report prepared in anticipation of sentencing indicates that

Ricky vent into the affair expecting that a “shoot-out” would

be necessary eventually. (MacDonald report, attached to Pre-

sentence Report, at 5-6.) The situation was similar with

Raymond Tison. He stated to the Probation Officer that the

guns used in the prison break were loaded, and that he realized

people might be killed; he would even have been willing to

personally kill in a “very close life or death" situation.

(Presentence Report at 11.) Thus, even if they did not speci-

fically plot to do away with the Lyons family, both Petitioners

were intent from the outset on killing people, if that seened

necessary for their purposes.

Third, it staggers the imagination to see it claimed

that Petitioners did not control the fatal events. The murders

would never have taken place had they not engineered the escape.

More directly, even accepting their self-serving version of

events, both Petitioners were in a position to influence the

situation. Ricky Tison admitted that his father had specifically

told him, before doing anything, that he was “really thinking"

about killing the helpless, unarmed, isolated family, and that

although he was himself heavily armed, he did absolutely nothing

to deter or dissuade his father from doing it. (Transcript of

Brown interview, Feb. 1, 1979, at 33.) Raymond Tison made a

similar admission. (Interview, Jan. 26, 1979.)

Thus, there was substantial evidence of Petitioners’

deep participation in the events which were the predicate to

the killings, without convincing rebuttal, their murderous

intent, and their influence over the whole situation. Any fair

reading of the opinions (Exhibits A and B to the Petition)

shows that the Arizona Supreme Court did not accept Petitioners’

position on these matters, but rather held that even if Petitioners

were right, it would not relieve them of culpability. These

factors are important because they demonstrate significant

distinctions between thise case and the two cases Petitioners

primarily rely on, Lockett v. Ohio, 438 U.S. 586 (1978), and

Enmund v. Plorida, 399 So.2d 1362 (1981), cert. granted, No. 61

5321. Lockett involved an accidental killing in the course of

a robbery, out of the presence of the defendant, (438 U.S. at

590), so it factually is not comparable to the carefully crafted

conspiracy and prison break presented here. Moreover, the whole

point in Lockett was that Ohio did not permit minimal participation

to be treated as mitigation; Arizona has specifically allowed

such consideration since 1973, and Petitioners were both given the

benefit of it. Enmund is also dif erent, in that there was

no evidence of the sort of preconcert and willingness to see

death occur which was obvious in this case, Enmund apparently

was not present when the killings occurred, and Enmund's

cohorts were not identified as being convicted murderers whom

he had brokenout of prison. The prior history of the persons

a defendant associates himself with is of great importance:

while Petitioners indicate their willingness to explore “the

Anglo-American history of the felony murder and aiding and

abetting rules” (Petition at 16), far older precedent has

resolved the question of their culpability against them on

precisely this basis:

iii’ tis anit mae . ies

flesh shall not be eaten; but the owner of the

ox shall go unpunished.

“If, however, an ox was previously in the

habit of goring, and its owner has been warned,

yet he does not confine it, and it kills a

2 also chall be put to data.

Exodus 21:28-29.

Having intentionally set loose murderers, Petitioners may not

be heard to claim they are guiltless when more deaths are

perpetrated.

Turning from essentially factual considerations to

legal arguments, we see that Petitioners have raised several.

First, they lala that they were not given individualized

sentencing consideration, because the judge simply treated

them like “the actual killers". (Petition at 16-17.) As

we have a ready noted, there is some basis for believing

that Petitioners are the “actual killers", but in any event

the trial judge did given them individualized consideration.

The result of that individualized consideration was a finding

of involvement so deep as to warrant punishment identical to

that of the “actual” triggerman (if that was someone else).

The trial judge's findings include the following:

-~4-

3. Neither defendant's participation was

relatively minor. Although each of the defen-

dants has stated the murders were actually

committed by Gary Tison and Randy Greenawalt,

the participation of each in the crimes giving

rise to the application of the felony murder

rule in this case was very substantial. Even

accepting as true their statements of who

actually fired the fatal shots, it cannot be

said that their participation was relatively

minor. By their own statements their partici-

pation up to the moment of the firing of the:

fatal shots was substantially the same as that

of Randy Greenawalt and Gary Tison. At the

moment of the firing their participation may

not have equalled that of Randy Greenawalt

and Gary Tison, but their standing and watch-

ing them while armed themselves cannot be

characterized as relatively minor participation.

4. Each defendant could reasonably have

foreseen that his conduct in the course of

the commission of the offenses for which he was

convicted would cause or create a grave risk

of causing death to another person.

There are mitigating circumstances pre-

sent. They are:

1. The youth of the defendants, Ricky

being 20 years of age and Raymond being 19

years of age.

2. The defendants have no prior felony

convictions and their criminal activity before

July 30, 1978 was very minimal.

3. They have been convicted of four

murders under the felony murder instructions.

Number 7. In determining what punishment

should be imposed for your convictions of mur-

der of John F. Lyons, Donnelda Lyons, Chris-

topher Lyons and Teresa Jo Marie Tyson, this

Court has weighed the aggravating circumstances

and the mitigating circumstances set forth in

its special verdict. This Court finds that

there are no mitigating circumstances suffici-

ently substantial to call for leniency. There-

fore each of you is sentenced to death on each

of — murders of which you have been found

guilty...

(Exhibit C to the Original Petition at pp. 63a-

64a, 69a.)

Petitioners were given all the individualized consideration

to which they were entitled.

Next, Petitioners suggest that “the Constitution

requires the State to bear the burden of establishing that

* the defendant.'s role in the crime was sufficiently great to

warrant the death penalty". (Petition at 17.) Arizona has

never contended otherwise, but what Petitioners fail to

understand is that that burden is met once even one of the

statutory aggravating circumstances is proved. Absent

substantial mitigation, one aggravating circumstance will

provide the difference between the charged crime and the

“norm” of murders so that death may appropriately be in-

posed. See, @.g., State v. Richmond, 114 Ariz. 186, 560

P. 2d 41 (1976), cert. denied 433 U.S. 915 (1977). What

Petitioners are really complaining of is the rule that it

is up to the defense to provide the evidence of mitigation,

which may offset the aggravating circumstance so that the

death penalty is not appropriate. The Arizona Supreme

Court, relying om a decision of this Court, has repeatedly

rejected the argument Petitioners now raise. See, e. 9.

State v. Watson, 120 Ariz. 441, 447, 586 P. 2d 1253, 1259

(1978), cert. denied 440 U.S. 924:

When the issue of guilt is settled and

only the question of punishment remains, due

process is not offended by requiring the

already guilty defendant to carry the burden

of showing why he should receive leniency.

This is not contrary to the due process require-

ment that the State has the burden of proof

as to guilt of the defendant. In discussing

affirmative defenses when sanity was a ques-

tion, the United States Supreme Court stated:

"Among other things, it is ‘normally within

the power of the State to regulate procedures

u~der which its laws are carried out, including

the burden of producing evidence and the burden

of persuasion,’ and its decision in this regard

is not subject to proscription under the Due

Process Clause unless ‘it offends some principle

of justice so deeply rooted in the traditions

and conscience of our people as to be ranked as

fundamental’. (citations omitted)" Patterson

v. New York, 432 U.S. 197, 201-02, 97 S.Ct.

2319, 2322 53 L. Ea 2d 281, 286-87 (1977).

To require the State to negate mitigating

circumstance would place an impermissible burden

on the State. We do not believe it offends due

process to require the defendant to show such

mitigating circumstances.

Finally, Petitioners raise the question of the

“proportionality” of the death penalty for a crime where

guilt is established by means of some form of vicarious

responsibility rule. Most of the cases they cite are not

even relevent. Coker v. Georgia, 433 U.S. 584 (1977)

involved the death penalty for rape, not homicide. In

Gregg v. Georgia, 428 U.S. 153 (1976) the defendant's

direct causation of the death was clear, so the felony

murder question was not addressed, and Green v. Georgia,

442 U.S. 95 (1979), was only a question of evidence

admissibility, not what effect that evidence (supposedly

exculpatory statements by the “real” perpetrator) should

have had. The only case from this Court directly examining

the “proportionality” concept is Lockett v. Ohio, supra,

and the varie decisions in that case indicate that

Petitioners’ death sentences are not constitutionally

“disproportionate”.

It is true that Justice White held in his dissent

that death was a dis oport ionately severe punishment

“without a finding that the defendant possessed a purpose

to cause the death of the victim." 438 U.S. at 624. In

doing so he stood alone. Justice Marshall continued to

adhere to his view that the death penalty is always

constitutionally prohibited. 438 U.S. at 619. Presumably

he would be joined in this by Justice Brennan, who did

not participate in the decision.

A six member majority of the court refused to hold

that execution could never be imposed for felony murder.

Justice Rehnquist flatly rejected the results of Justice

White's proportionality analysis:

As my Brother WHITE concedes, approxi-

mately half of the States ‘have not

legislatively foreclosed the possibility

of ing the death penalty upon one

who did not intend to cause death.'

„ -Centuries of common-law doctrine

establishing the felony-murder doctrine,

~~

would have to be re to this

view. Just as surely as many tful

moralists and penologists would reject

the Biblical notion of ‘an eye for an

eye, a tooth for a tooth,’ as a guide

for minimum sentencing, there is nothing

in the prohibition against cruel and

unusual punishments contained in the

Eighth Amendment which sets that injunc-

tion as a limitation on the maximum

sentence which society may impose.

438 U. 8. at 635-36.

The plurality opinion, authored by Chief Justice Burger

and joined in by Justices Stewart, Powell, and Stevens,

emphasized that the felony-murder doctrine itself was

constitutionally inoffensive:

That states have authority to make

aiders and abettors equally responsible,

as a matter of law, with principals, or

to enact felony murder statutes is be-

yond constitutional challenge.

4386 U.S. at 602.

They did hold that degree of participation in the crime had

to be considered in assessing punishment, but nowhere in

the opinion is there any suggestion that death may not be

appropriate, even for a felony-murder, if the mitigating

effect of minimal participation or lack of specific

murderous intent is out-weighed by sufficiently cogent

aggravating factors.

Isle conclude that the Eighth and

Fourteenth Amendments require that

the sentencer, in all but the rarest

kind of capital case, not be pre-

cluded from considering as a miti-

pe factor, any aspect of a

e nt*s character or record 4 4

any of the circumstances of the

offense that the defendant proffers

as a basis for a sentence less than

death.

438 U.S.at 604.

(emphasis original, footnotes omitted).

[Al statute that prevents the sentencer

in all capital cases from giving inde-

pendent mitigat weight to aspects

of the de s character record

and to circumstances of the offense

proffered in mitigation creates the risk

that the death penalty will be

in spite of factors ch may call for a

less severe penalty. When ice is

between life and death, that risk is un-

acceptable and incompatible with the

commands of the Eighth and Fourteenth

Amendments.

438 U.S. at 605. (Emphasis added.)

Justice Blackmun likewise rejected any absolute prohibition

on the use of the death penalty based upon proportionality

analysis:

The Ohio capital statute, together

with that State's aiding and abetting

statute, and its statutory definition

of purposefulness as including reck-

less endangerment, allow for a parti-

cularly harsh application of the death

penalty to any defendant who has aided

or abetted the commission of an armed

robbery in the course of which a person

is killed, even though accidentally.

It might be that to inflict the death

penalty in some such situations would

skirt the limits of the Eighth Amendment

proscription, incorporated in the

Fourteenth Amendment, against gross

disproportionality, but I doubt that

the Court, in regard to murder, could

easily define a convincing bright-line

rule such as was used in regard to rape,

Coker v. Georgia, 433 U.S. 584, 97

S.Ct. 2861, 53 L. Ed. 2d 282 (1977), to

make workable a disproportionality

approach.

(emphasis added, footnotes omitted).

Instead, he too would have the circumstances of the crime

weighed in mitigation, the outcome to be determined by the

cumulative impact of all the factors, both mitigating and

aggravating, relevant to sentencing:

The more manageable alternative,

in my view, is to follow a proceduralist

tack, and require, as Ohio does not, in

the case of a nontriggerman such as

Lockett, that the sentencing authority

have discretion to consider the degree

of the defendant's participation in the

acts leading to the homicide and the

character of the defendant's mens rea.

That approach does not interfere with

the State's individual stat cate-

gories for assessing legal liability

but merely requires that the sentencing

authority be permitted to weigh any

available evidence, adduced at trial or

at the sentencing hearing, concerning

the defendant's degree of participation

in the homicide and the nature of his

regard to the commission of

*

be permitted to adduce evidence, if any

be ene e, that he had little or no

reason to onticipate that a gun would

be fired, or that he played only a

minor part in the course of events lead-

ing to the use of fatal force.

438 U.S. at 615-16.

;

B

It therefore appears that while degree of participation

and other circumstances of the crime must be taken into

account as mitigating factors, the existence of such factors

does not dictate that capital punishment may never be imposed.

Such circumetances must simply be added to the sentencing

calculus, the outcome being determined by the impact of all

sanction-relevant variables. This is precisely what has

been required in Arizona since enactment of the current

capital punishment scheme. Ariz. Rev. Stat. Ann. §§13-454

(F) (3) and (4), which governed the sentences in this case,

provided that the following must be considered as mitigating

circumstances:

3. He was a principal, under §13-

452, Arizona Revised Statutes, in

the offense, which was committed

by another, but his participation

was reiatively minor, although not

so minor as to constitute a defense

to prosecution.

4. He could not reasonably have fore-

seen that his conduct in the course of

the commission of the offense for which

he was convicted would cause, or would

create a grave risk of causing, death

to another person.

Petitioners were given the benefit of these provisions, and

the trial court also took cognizance that the convictions

had been obtained under felony-murder instructions. Thus

there can be no question that Petitioners were given every

consideration they were entitled to.

A significant number of state courts have concluded

that death is not a disproportionate penalty where one is

deeply involved in a murder, even if he is not the trigger-

man. Besides this case and Enmund v. Florida, see Legare v.

State, 243 Ga. 744, 257 8.8. 24 247 (1979); State v Brewer,

- 10 -

R

417 R. B. 24 889 (Indiana 1981); Bullock v. State, 391 80. 2d

601 (Miss. 1980); Prather v. State, 137 P.2d 249 (Okla. Cr.

App. 1943); State v, Andrews, 574 P. 2d 709 (Utah 1977).

This Court should concur with these courts, and deny

the writ in the present case.

II. THE ARIZONA SUPREME COURT CORRECTLY CONCLUDED THAT

PETITIONER RICKY TISON'S LAWYER HAD WAIVED ANY

ISSUE OF THE ADMISSIBILITY OF PETITIONER'S STATE-

MENTS UNDER MI v. ARIZONA, AND THE STATEMENTS

WERE SHOWN ILY MADE, SO THERE

IS NO ISSUE REQUIRING ACTION BY THIS COURT.

Petitioner Ricky Tison next raises questions about

the admission of certain incriminating statements made by

him. He begins by flatly asserting that these statements

were bad, because in violation of Edwards v. Arizona, _

U.S. _, 68 L. Ed. 2d 378 (1981) and Rhode Island v. Innis,

446 U.S. 291 (1980). (Continued Petition at 17.) This

contention is not admitted by Respondent; quite aside from

the fact that the events and trial in this case long pre-

ceded both those decisions, so that they may not even be

chronologically applicable, the facts are much closer to

those in Michigan v. Mosley, 423 U.S. 96 (1975). There

was a total of three statements given, but virtually

everything elicited in the two earlier statements (which

occurred out in the desert at the scene of the capture)

was also included in the later statement, given in the

jail to Lt. Brawley. The Brawley statement is a classic

Mosley situation, separated substantially by both time and

distance from the original questioning, conducted by a

different person from a different agency, and preceded

by a completely renewed advisement of rights, Therefore,

even if Miranda applied, it was complied with, at least

in the Brawley statement, and the earlier statements

(even if improper in some respect) were superfluous, and

harmless error at worst. It is submitted, however, that

the Arizona Supreme Court properly refused to pass on the

claimed Miranda violations because they were, indeed,

waived, and it is therefore unnecessary for this Court

to tediously dissect the facts on the question.

A. Existence of a waiver. Petitioner has admitted

that he “presented no written motion or oral argument

at the suppression hearing which specifically mentioned

the Fifth and Sixth Amendments or Miranda v. Arizona."

(Continued Petition at 17.) However, to understand how

clearly the defense counsel was asserting pure voluntariness

and nothing more, it is essential to read his actual

argument, which is reproduced as pages 165a-167a of Exhibit

L, attached to the Continued Petition. He began as follows:

MR. BEERS: Your Honor I move to suppress

all three of the statements that Ricky

allegedly made.

The basis of motion is that the state-

ments were not 1 1 not alleging

that any == T have no further witnesses,

i will go on into my argument.

I am not alleging that anybody held a gun

te Ricky's head and said “talk, or else, but

I am claimi that the totality of circum-

stances of Eich the statements were taken

were so intimidat that no normal son

(Exhibit L, p. 1682 emphasis added.)

He ends on a similar note:

I do know that under the law when all the

circumstances are looked at, the statement

s rea volun , 4 *

„ that is the case with

all three of Ricky's statements.

(1d. at 167a; emphasis added.)

This line of argument plainly demonstrates that the

defense counsel understood what is shown below, that the

Arizona courts have consistently distinguished between

compliance with Miranda and the broader concept of volun-

tariness,and that he framed his argument accordingly. No-

where in his discussion does he so much as mention Miranda

= 12 -

or the right to counsel. On the*contrary, he raises factors

which are indisputably outside the realm of Miranda, but

which do bear on the traditional concept of voluntariness:

numerous police being around, the defendants’ clothes being

cut off them, their being held nude out in the desert for

some time, uncertainty regarding the status of Donnie Tison,

etc. Even in discussing the matter of appellant's refugal

to sign a rights waiver form the lawyer did not advert

to typical Miranda questions like the resumption of ques-

tioning after a rights invocation; instead, he argued that

the refusal to sign indicated that the statement given was

“not really voluntary." It is true that the prosecutor

briefly mentioned Miranda in his responsive argument

(Exhibit L, pp. 168a, 169a) but the overwhelming bulk of

the argument was oriented toward voluntariness generally.

Likewise, the trial judge mentioned his belief that both

Petitioners had understood and waived their rights, but only

as an afterthought to his finding that the statements were

"freely and voluntarily made". (Exhibit L. at p. 170a.)

Petitioner would ascribe all of this not to a careful

focusing on what the defense counsel really believed to be

the state of the facts and a calculated decision as to what

he could reasonably argue, but rather to a general confusion

in Arizona law about the distinction between Miranda on one

hand and “voluntariness” on the other hand. In support of

this idea he particularly points to this Court's reversal of

the Arizona Supreme Court in Edwards v. Arizona, supra.

It is submitted that this Court perceived confusion in Edwards

that was not actually there; the Arizona Supreme Court pointed

out in State v. Edwards, 122 Ariz. 206, 212, 594 P. 24 72, 78

(1979), that “voluntariness of a confession” was meant to

include “the totality of the circumstances", including

“whether the defendant's action is knowing and intelligent

and whether his will has been overbor ne“. “Knowing, intelli-

gent, and voluntary” is Miranda phraseology. Nonetheless,

this Court treated the case as if voluntariness in the broad

sense of the overbearing of the defendant's will was the

only factor considered, and reversed. The truth is that

Arizona has always distinguished between Miranda compliance

and “voluntariness", but the distinction is blurred if the

reader of the caselaw fails to recognize that “voluntary”

means different things in different contexts. Even before

Miranda came along a defendant's statements had to be

voluntary to be admissible, in the sense of not being the

result of threats, promises, or duress. See, @.g., Kermeen

v. State, 17 Ariz. 263, 151 P.738 (1915); State v. Gallagher,

97 Ariz. 1, 396 P 2d 241 (1964). Miranda is based on the

theory that custod'al interrogation is inherently coercive,

so that decision rather artificially added another facet to

voluntariness -- the warnings spelled out in Miranda had to

be given or the statements would be excluded as “involuntary”,

regardless of whether there had been any actual threats,

promises, etc. Another side of Miranda is that, even if the

warnings were properly given (so as to remove the presumption

of involuntariness), defendants would sometimes invoke the

Miranda rights, and then subsequently make a statement. The

law, of course, demands that the waiver of such invoked rights

be shown to be knowing, intelligent and voluntary, so yet

another variant on the term “voluntary” developed. Thus,

“voluntary” has at least two different discernible usages --

in the limited and rather artificial context of Miranda

(relating to either the initial warnings or a subsequent

waiver), and in the broader context of any sort of improper

influence (regardless of whether the warnings have been

given). The Arizona courts have consistently maintaired the

distinction between voluntariness in its broad sense and the

- 16 -

artificial] concept of voluntariness set up in Miranda.

Examples are:

1. State v. Arnett, 119 Ariz. 38, 46, 579 P. 2

542, 550 (1978) - “Miranda v. Arizona, supra, did not dis-

place the standards of ‘voluntariness' established by case

law before that decision; whether a confession is voluntary

depends on the facts of each case; and compliance with the

Miranda decision is only one factor to be considered.“

2. State v. Bishop, 118 Ariz. 263, 268, 576 P.2d

122, 127 (1978) - compliance with Miranda and absence of

threats, promises, long interrogation, etc. listed

separately as factors showing voluntariness.

3. State v. Cabrera, 114 Ariz. 233, 560 P.2d 417

(1977) - statements to private persons must still be free

of coercion to be admissible, even though Miranda not

applicable.

4. State v. Miller, 110 Ariz. 597, 598, 522 P. 2d

23, 24 (1974) - court dealt with appeliant's contention

that “even if he were properly given the Miranda warnings,

the confession was involuntary..."

5. State v. Stone, 122 Ariz. 304, 594 P.24 558

(Ct. App. 1979) - court need not instruct jury on Miranda

in giving them voluntariness issue.

6. State v. Denny, 27 Ariz. App. 354, 555 P. 2d 111

(1976) - though Miranda was “scrupulously observed", con-

fession improperly admitted because obtained by trick.

In sum, there is no reason to believe that this was

anything other than a knowledgeable decision by coursel to

pursue the voluntariness line of argument and waive the

other approaches. It is therefore fair to hold Petitioner

to his choice of argument and to preclude consideration of

objections not clearly raised with the trial court. This

is not the first time an Arizona appellate court has refused

@ 18 @

to consider an objection to a confession not raised in the

trial court. See State v. Winters, 27 Ariz.App. 508, 556

p. 2d 809 (1976). That tne Attorney General argued the

Miranda issues (Continued Petition et 18) means no more

than that he responded to the issues as framed first by

Petitioner in the appeal and in doing so overlooked the

waiver; such appellate level inadvertence cannot transform

trial court waiver into a non-waiver. The bottom line is that

the trial judge was never put on notice that a detailed

Miranda analysis was expected, so none was done, and Petitioner

waived the issue.

B. Waiver standard. Petitioner further suggests that

the Court should take this case up as an opportunity to establish

what kind of conduct is necessary to establish a waiver. It

is submitted that such a standard has already been set, and that

the record here contains nothing calling out for renewed con-

sideration by this Court. There can be no doubt that the

Arizona procedural rule requiring specificity of objections

meets legitimate state interests. Its functions are similar

to, and complemtary to, the contemporaneous objection rule

endorsed by this Court in Henry v. Mississippi, 379 U.S. 443

(1965) -- unless the trial judge understands what the

objection is, he cannot respond to it appropriately, and

the whole reason for raising objections will be frustrated.

Indeed, this Court itself subscribed to the specific objec-

tion rule in On Lee v. United States, 343 U.S. 747, fn. 3

(1952). Petitioner has presented no explanation whatever

for the failure to raise objection to the admission of his

statements on Miranda grounds, let alone “exceptional ir-

cumstances", so he cannot complain there was error. Cf.

Wainwright v. Sykes, 433 U.S. 72 (1977); Henry v. Mississippi,

supra. The record suggests there was a knowing waiver, for

several reasons. The lawyer was, after all, competent enough

Mo

to make a suppression motion. Further, counsel for codefen-

dant Greenawalt, who had undergone essentially similar

treatment, had filed a suppression motion specifically

based on Miranda less than two months before this motion

was heard (Item 32, State Court Record on Appeal), so

Petitioner's counsel (who attended the hearing on it) was

certainly aware of Miranda's potential applicability. Even

after the prosecutor mentioned Miranda briefly in responding

to the argument of Petitioner's counsel, the defense lawyer

had nothing to say about it. (Exhibit L to the Continued

Petition at 168a-170a.)

Under facts like this a knowing waiver must be found.

Cf. Estelle v. Williams, 425 U.S. 501 (1976). While Petitioner

seems to find it surprising that a failure to state a

particular case or numbered amendment will suffice to preclude

relief, such action is in accordance with this Court's own

actions. Ses, @.g., Picard v. Connor, 404 U.S. 270 (1971),

where relief was denied under the Equal Protection Clause

because a litigant, in invoking the Fourteenth Amendment,

argued and relied at the state court level only on the Due

Process Clause. As we have seen, it is one thing to say that

a statement is involuntary, but it is something altogether

different to say that it was obtained in violation of Miranda.

Petitioner's counsel knowingly relied only on voluntariness,

so he merits no relief.

Cc. Voluntariness. Finally, Petitioner asks this Court

to determine whether his statements were indeed voluntary.

(Continued Petition at 17-20.) While thr cases he cites indicate

that questioning of a prisoner while he is stripped is one

factor to be considered, none of them establishes a per se

rule equating nudity with involuntariness. On the contrary,

one vf his cases, Malinski v. New York, 324 U.S. 401 (1945)

emphasizes that voluntariness is to be determined by examining

= i2 «

“all the attendant circumstances". 324 U.S. at 404. Malinski

is particularly instructive in that because the removal of

the suspect's clothing was for a legitimate purpose, to

examine for bullet wounds, and he was later given a covering,

the stripping was actually accorded little weight. See also

United States v. Duvall, 537 F.2d 15 (2d Cir. 1976), cert.

denied 426 U.S. 950. The situation was similar with Petitioner.

His clothing was initially removed as part of a search, was

retained because it had been cut to get it off and with the

legitimate object of preserving it as evidence, and he was

given a blanket to cover himself with before being questioned.

(Exhibit L at 136a, 140a, 144a-145a.) The Malinski confession

was held involuntary because it was the product of fear“ of

being beaten (324 U.S. at 407), and no similar fear has been

proved in Petitioner's case.

The details of the circumstances pertaining to Petitioner's

statements were presented to the trial court, which found the

statements admissible, and that conclusion was upheld after

exhaustive examination by the Arizona Supreme Court. (Exhibit

A to the Original Petition at 13a-l17a.) This Court has pre-

viously held that substantial deference will be given to the

findings of the trial court, even on the ultimate question

of voluntariness. Haynes v. Washington, 373 U.S. 503, 515-516

(1963). This being so, the only reasoned conclusion available

is that Petitioner's statements were voluntary and were pro-

perly admitted, so no action by this Court is necessary.

- 18 +

III. THE SUFFICIENCY OF THE INSTRUCTIONS RESTS ON AN

INTERPRETATION OF STATE LAW, SO THE QUESTION IS

NOT APPROPRIATE FOR REVIEW BY THIS COURT, AND IN

ANY EVENT THE CONSPIRACY INSTRUCTIONS WERE

ADEQUATE.

Petitioners next complain that the Arizona Supreme Court

failed to review the correctness of certain instructions given

concerning conspiracy. That is not altogether correct. Though

the Arizona court declined to go into whether or not the four

formal elements of the crime of conspiracy had been enunciated,

it did examine them to determine that they conveyed the sub-

stance of the Arizona statute which imposes criminal respon-

sibility on all persons “concerned in“ the commission of an

offense. (Exhibit A to the Original Petition, pp. 17a-18a;

see also State v. Creenawalt, 128 Ariz. 150, 168-170, 624

p. 2d 828, 846-848 (1981), cert. denied U.S. 30 U.S.L.W.

3250, in which the same issue was discussed at length in the

context of the trial of Petitioners’ codefendant.) The

highest court of a state is, of course, the ultimate

authority on the meaning and application of state statutes.

Mullaney v. Wilbur, 421 U.S. 684 (1975). Petitioners are,

therefore, really complaining about a state law matter, not

a true federal question, and hence are raising matters out-

side this Court's authority.

It is plain,moreover, that if a full-scale analysis

of the instructions is done, they would be fully adequate

to cover even a separate formal charge of conspiracy. It

is well established in both Federal and Arizona jurisprudence

that instructions must be evaluated in their totality. Cupp v.

Naughton, 414 U.S. 141 (1973); State v. Goodsoe, 107 Ariz.

367, 489 P.24 4 (1971). ‘The instructions on conspiracy cover

portions of three pages. (Exhibit M at 177a-179a.) The

instruction objected to at trial (Number 17) makes up only

the first few lines of these instructions, and includes

two of the four elements the Petition lists, agreement and

@ 19 «

an illegal objective. (177a, at lines 26-28.) The

necessity for a plan is touched upon at 178a, lines 8-12.

The term “overt act“ is not used in the instructions, but

the concept is plainly conveyed in the discussion of the

need for someone to “act or participate” in furtherance of

the conspiracy (178a at lines 8-26), and the nention that

the acts of one conspirator bind the others (179a at lines

10-22). All the elements being covered, the instructions

were sufficient, and there is obviously no ground for

review by this Court.

IV. THIS COURT ALREADY HAVING DEALT WITH THE LIABILITY OF

COCONSPIRATORS IN PINKERTON v. UNITED STATES, THERE

IS NO NEED FOR FURTHER EXPLORATION OF THE ISsue,

ESPECIALLY AS THE COMPLICITY OF PETITIONERS IN EVERY-

THING WHICH OCCURRED IS SO GROSS AND SO PLAIN.

Petitioners desire for this Court to deal with the

concept of imputed criminal responsibility; it has already

done so, finding it altogether permissible for a conspirator

to be held accountable for substantive crimes committed in

the course of the conspiracy by i? coconspirators. Pinkerton

v. United States, 328 U.S. 640 (i. 16); see also I WHARTON'S

CRIMINAL LAW AND PROCEDURE (Anderson ed. 1957) §97 at 194-

196. In any event, even if some restrictions were to be

applied, they could not reasonably benefit Petitioners, who

were inextricably involved in every aspect of the criminal

scheme here. This case is no vehicle for modification of

the Pinkerton rule.

CONCLUSION

Petitioners’ trials were fundamentally fair in all

respects, and their death penalties are both legal and

proportionate to the wickedness of their conduct. This

Court should therefore decline to review this case.

Respectfully submitted,

ROBERT K. CORBIN

The Attorney General

geen.

Assistant Attorney al :

Attorneys for Respondent

CERTIFICATE OF SERVICE

STATE OF ARIZONA)

County of Pima sp

BRUCE M. FERG being first duly sworn on oath deposes

and says: He is an Assistant Attorney General for the State

of Arizona and as such did cause to be deposited in the U.S.

Mail, postage prepaid, two (2) copies of the foregoing to

Alan M. Dershowitz Stephen H. Oleskey

20 Elmwood Avenue HALE AND DORR

Cambridge, MA 02138 60 State Street

Counsel for Petitioners Boston, MA 02109

Counsel for Petitioners

and one (1) copy each to:

Ricky Tison Raymond Curtis Tison

e

SUBSCRIBED AND SWORN to before me this g., day of

December, 1981.

Serge pub HR ne

My Commission Expires:

June 4, 1985