Petitioners Reply Brief — Tison v. Arizona

ge RECEIVED |

DEC 17 1981

OFFICE CF THE CLERK

SUPREME COURT, US.

No. 81-5634

IN THE

SJPREME COURT OF THE UNITED STATES

October Term, 19861

RICKY WAYNE TISON and

RAYMOND CURTIS TISON,

Petitioners

v.

STATE OF ARIZONA,

Respondent

PETITIONERS’ REPLY TO THE RESPONSE BY THE STATE OF ARIZONA

TO THE JOINT PETITION FOR WRITS OF

CERTIORARI TO THE SUPREME COURT OF ARIZONA

Alan M. Dershowitz

20 Elmwood Avenue

Cambridge, MA 02139

(617) 661-1965

Stephen H. Oleskey

Hale and Dorr

60 State Street

Boston, MA 02109

(617) 742-9100

Counsel for Petitioners

Table of Authorities

Reasons for Granting the Writ

IV.

The decisions below in petitioners’ cases

present the issue of whether someone not

proven to have participated in the actual

killing or to have intended death can

constitutionally be executed.

Petitioner Ricky Tison's case presents

this Court with an excellent opportunity

to determine whether a mere failure of

the defense attorney to use the single

word Miranda“ constitutes a waiver of an

otherwise fully litigated issue, and to

reaffirm the standards for determining

the voluntariness of a statement.

The Arizona Supreme Court's failure to

review the correctness of the conspiracy

instructions given to the juries in the

Tisons’ cases presents important issues

concerni the requirements of basic due

process of law in a capital case.

The Tisons's cases present the issue of

how attenuated a causal connection there

may be between the defendant's acts and

the victim's death before due process

bars the State from holding hia

vicariously liable for murder

Conclusion

Page

ii

10

TABLE OF ITI

Cases

Enmu v. Florida, 399 So.2d4 1362 (1981),

cert. rt * No. 81-5321 eee eee eee ee eee ee eee ee eee

2, 3

Enmund v. Florida, No. 81-5321 eer eee ee eee eee eee ee eee eee 4, 12

Estelle v. Williams, 425 U.S. 501 (1976

Haynes v. Washington, 373 U.S. 503 (1956333jjjjj3)3

Henry v. Mississippi, 379 U.S. 443 (196

Lockett v. Ohio, 438 U.S. S86 (197 ꝶh0 h

Malinski v. New York, 324 U.S. 401 (19s)

Michigan v. Mosley, 423 U.S. 96 (1%

Miranda v. Arizona, 384 U.S. 436 (1866

6, 7,

Mullaney Vv. Wilbur, 421 v. 8. 684 (1975) eee „ „

Picard * Connor, 404 9.8. 270 (1971) ee ee ee

ao 2 @yvrv en" @ @&

Pinkerton v. United States, 328 U.S. 640 (1946) ........ 9, 10

Robinson v. California, 370 9.8. 660 (1962) eee ee eee eee

State Vv. Arnett: 119 Ariz. 38,

- 2 (1978) ee eee ee ee eee eee „ ere eer eee eee er eee

State Vv. Ricky Wayne Tison, No. 4612 (Aciz.) eee „„ „„

9 States v. Duvall, 537 . 2 15 (24 Cir.),

e + Gen. “ve 950 (1976) eee ee „„ „65

Statutes

Laws, 1973, Ch. 138, §5, Ariz. Rev. Stat. Ann.

$13-454(F)(3) (Supp. 1957-1958) (Repealed

1978) itt itt ee ee ee

3

4

4, 5

In its Response to petitioners’ joint request for a writ

of certiorari, Arizona now argues at length that the Tisons'

involvement in the killings was more significant than was proven

or even argued at trial. In sharp contrast to Arizona's present

position, its prosecutor repeatedly argued to the jury in both

trials that Ricky and Raymond were not the actual killers but

were guilty under a combination of vicarious liability and felony

murder rules. In Ricky Tison's trial, the prosecutor argued,

“His participation was to pull a gun on the people and to 21d in

the robbery and kidnap," (Ricky's Tr. 2/27/79 at 581), and

“Ladies and Gentlemen, the defendant in this case participated.

He was an aider and abettor. He conspired with the persons who

did the murders. He is responsible for those murders ...° (Id.

at 598). See also id. at 577, 584-85, 588, 626. In Raymond

Tison's trial the prosecutor argued *...{I}]nm this case we have a

situation where the defendant is a conspirator with other persons

and those other persons killed somebody during these offenses .*

(Raymond's Tr. 3/2/79 at 395). See also id. at 386, 392-93. The

judge who sentenced petitioners found as a mitigating circun-

stance the fact that they were convicted “under the felony murder

instructions." (64a). Finally, the Supreme Court of Arizona

specifically found, in affirming their sentences of death, mat

they did not specifically intend that the Lyonses and Theresa

Tyson die, that they did not plot in advance that these homicides

would take place or that they did not actually pull the triggers

on the guns which inflicted the fatal wounds is of little signi-

ficance." (32a-33a).

Even the State concedes, as it must, thet the Arizona

Supreme Court has posed and decided the issue of the propriety of

the decth sentence for one not proven to have personally killed

ot intended death. (Response at 3). Although respondent con-

tinues to spar with the evidence presented in the case, it states

that the Arizona Supreme Court “held that even if Petitioners

were right, it would not relieve them of culpability." (1.

Acizona, having prosecuted and convicted the Tisons

under one set of facts and theories of liability, cannot now

properly jettison those facts and theories solely in order to

gain the presumed tactical advantage of more closely associating

Ricky and Raymond with actual participation in the killings.

Arizona, in its attempt to distinguish these cases from

Lockett v. Ohio, 438 U.S. 586 (1978) and Enmund v. Florida, 399

80. 2d 1362 (1981), cert. granted, No. 81-5321, argues that

Lockett involved an accidental killing and Enmund “apparently was

not present” when the killings occurred. (Response at 3-4).

However, an analysis of the record in those cases demonstrates

that there was actually more evidence available concerning intent

to murder and participation in the killings in both those cases

than is present here. In Lockett v. Ohio, supra, Justice mite

noted that “the facts in both of these cases might well permit

the inference that the petitioners did ih fact intend the death

of the victims,” id. at 627 (White, J., concurring in part,

dissent ing in part, and concurring in the judgment). Justice

Blackmun noted that the witness who testified that the killing

had been accidental was none other than the triggermen. Id. at

614 n.1 (Blackmun, J., concurring in part and concurring ‘in the

judgment). Similarly, in Enmund v. Florida, supra, sithough the

Florida Supreme Court concluded that the jury probably inferred

that Enmund was not present at the scene of the killings, Enmwnd

v. State, supra 399 So.3d at 1370, it appears that some evidence

was presented that Enmund was in fact the actual killer. See id.

at 1372. This Court properly considered both these cases in

accordance with the theories upon which they were prosecuted and

argued in the state courts on appeal. Cf. Robinson v. Califor-

nia, 370 U.S. 660 (1962). This Court can do no less here.

There is absolutely no evidence that either Ricky or

Raymond Tison killed anyone. The overwhelming and unrebutted

evidence presented st trial was that Gary Tison and Randy

Greenawalt killed all the victims. (Petition at 11; 3a). That

is the theory upon which these cases were submitted to the jury

and to the Arizona courts. That is the theory upon which this

Court should decide these petitions.

Arizona's claim that petitioners were given *individu-

alized sentencing consideration" indicates that it misses the

thrust of petitioners’ argument on this point. (Response at 4-

5). The State does not dispute the fact that aggravating cir-

cumstances which pertained to the actions of the actual killers

were applied to petitioners. (Petition at 17). The State feels

that, nevertheless, “[p)jetitioners were given all the individu-

alized consideration to which they were entitled" (Response at

5). The issue remains, nevertheless, whether the consideration

the Tisons received is constitutionally sufficient.

Pinally, contrary to the State's assertion (Response at

6), petitioners never disputed the proposition that « defendant

should beac the burden of proving mitigating circumstances. What

the Tisens argue is that it is constitutionally impermissible to

cephrase a factor which in substance can only properly be con-

sidered an aggravating circumstance and make the defendant prove

the converse as a mitigating circumstance. The degree of a

Gefendant's participation in e crime, upon which Arizona requires

a capital defendant bear the burden of proof, is such a factor.

See Laws 1973, Ch. 136, §5, Ariz. Rev. Stat, Ann. §13-454(F) (9)

(Supp.. 1957-1978) (Repealed 1978) (107a).

This Court has recently indicated its willingness to

decide whether someone can constitutionally be executed if he has

not been proven to have personally killed or intended death, by

grating certiorari in Enmund v. Florida, No. 81-5321. Petition-

ers would like to assist in the resolution of this issue by pre-

senting this Court with a thorough argument, based on the Anglo-

American history of the felony murder and aiding and abetting

rules, against the application of the death penalty in the cir-

cumstances presented by this case.

11. Petitioner Ricky Tsou s case presents dec Court with

n excellent un tO ermine whether a mere

ail by the de

"Mic constitu

t onstitut ion.

stancerds for termin

Statement.

Arizona's argument that both Ricky Tison and this Court

have misread a crucial distinction historically made by its

courts between presentation of the “voluntariness” issue on the

one hand and the nonwaiver of Miranda rights on the other is

supported neither by logic nor by the very decisions of its own

Supreme Court it excerpts at such length. (Response at 13-16).

As these excerpts show, and as the Arizona Attorney General

implicitly conceded in briefing before the Arizona Supreme Court

(a concession his office now apparentiy regrets), in Arizona the

question of compliance with Miranda has since that decision been

subsumed within the broad issue of volunteriness exactly as Ricky

Tison's attorney argued in the suppression hearings. See, e.g.,

State v. Arnett, 119 Ariz. 38, 579 F. 2d 542 (1978), cited by

Respondent at 15.

Arizona's argument on this point represents a somewhat

belateé conversion from an argument of State compliance with

Sivanda (Brief for Appellee at 17-23, * Tison,

Mo. 4612 (Ariz.)) to a wholly opportunistic reliance on a waiver

argument following the Arizona Supreme Court's murky pronounce-

ment cn this point in the decision below. (13a).

In any event, the issue presented here is not whether

Ricky Tison's statements were obtained in violation of Miranda v.

Arizona, 384 U.S. 436 (1966), but whether the finding of the

Arizona Supreme Court that these arguments had been waived pre-

sents an issue worthy of review by this Court. Ricky Tison con-

tends that since he did not waive the Miranda issues, his case

presents an excellent vehicle for clarifying the proper standards

for finding an intentional waiver by defense counsel of federal

constitutional issues.

Whether there was compliance with Miranda was the

subject of questioning by both the prosecwtor (122a-124a, 138a,

139a, 152a, 153a, 160a-16la) and the defense ettorney (128a,

164a) at the suppression hearing. Ricky's attorney questioned

one of the officers concerning Ricky's refusal to sign a waiver

of what were obviously Miranda rights (164a), and argued in clos-

ing that “the action of refusing to sign that waiver indicates

that he either did not understand the rights or he wasn't ready

to waive them.” (1678). The trial judge's finding that "I think

they understood their rights and waived them" was not an “after-

larizona claims that at least the last of the three state-

ments obtained from petitioner Kicky Tisor was elicited in com-

Pliance with pape v. AT Ee’ 384 U.S. 436 (1966), because it

was 2 substantially both time and distance from the

original questioning, conducted by a different person from a dif-

ferent agency, and preceded by a completely renewed advisement of

tights." (Response at 11). Therefore Arizona asserts taht this

statement is comparable to that found admissible in Mich 2

Sley, 423 U.S. 96 (1975). Even if Arizona's contention were

actually accurate, the first two statements elicited from Ricky

Tison remain undefended, and thus the issue of whether the State

of Arizona complied with Miranda would remain. However, Ricky

Tison's third statement is not comparable to that found admissi-

ble in Mosley. In mosey the issue presented to the Court was

whether an * 2 on @ Detective Hill was a per ne viola-

tion of N af the defendant had invoked his Tight to re-

main sil ing an earlier interrogation by Detective Cowie.

This Court specifically stated “[{iJn short, there is no cleia

that the procedures followed — Detective Hill's interroga-

tion of Mosley, stand alone, did not fully y with the

strictures of the opinion.” „ Supre,

423 U.S. at 98. Here the contrary, counsel v ously argued

on

below that the procedures followed dur ing 105 8 interroga-

tions of petitioner Ricky Tison were in violat of N .

Brief for llant at 36-45; Reply Brief for Appellant at 12-18,

State v. Ricky Wayne Tison, Mo. 4612 (Ariz.).

thought,” as claimed by Arizona (Response at 13) but was clearly

in response to Ricky Tison's attorney's argument that the inter-

rogation following Ricky's refusal to sign the waiver violated

Miranda. The issues were then fully argued by both sides at the

state appellate level. Arizona now grudgingly explains that the

Attorney General merely “responded to the issues as framed by

petitioner in the appeal and in doing so overlooked the waiver."

(Response at 16). In fact, as the record demonstrates, bott

parties clearly believed that the Miranda issues had been

properly preserved until the Arizona Supreme Court inexplicably

held otherwise.

That Court's decision gives no indication of how defense

counsel had knowingly and intentionally waived this fully liti-

gated issue, but merely said that there was a “failure to raise

these issues at the suppression hearing.” (13a). The only pos-

sible basis for this holding is that at the suppression hearing

defense counsel did not use the word “Miranda* (although the

prosecutor did on several occasions, 124a, 137a-138a, 153a) but

instead spoke of “(Ricky Tison's) rights," and “invoke[ing) his

right to remain silent.” (165a -167a).

No precedent cited by respondent supports a finding of

waiver under those circumstances. The objection was neither

untimely as in Henry v. Mississippi, 379 U.S. 443 (1965), nor

apparently deliberately bypassed as in Estelle v. Williams, 425

U.S. 501, 516 (1976). Picard v. Connor, 404 U.S. 270 (1971),

cited by Arizona for the proposition that failure to recite in

haec verba results in the waiver of constitutional rights (Re-

sponse at 17), in fact stands only for the proposition that “the

substance of a federal habeas corpus claim must first be pre-

sented to the state courts." Id. at 278 (emphasis added). Here,

the essence of the Miranda claim, and everything but the invoca-

tion of the word Miranda“ by petitioner's attorney, was pre-

sented, litigeted and decided below. Thus the case presents an

excellent opportunity for this Court to determine whether a state

court may properly find a waiver of federal constitutional rights

under such circumstances.”

Finally, respondent argues that this Court need not take

this occasion to re-emphasize the standards for determining when

a confession is voluntary “because the only reasoned conclusion

available is that Petitioner's statements were voluntary." (Re-

sponse at 18). Arizona's conclusion“ on this point is remark-

able in view of the record of Ricky's custodial questioning. In

flat contradiction to Arizona's factual assertions (Response at

18), the record indicates that Ricky Tison was not only nude when

questioned but, as the Arizona Supreme Court pointed out, lacked

even a blanket to wrap around him at the third interrogation

(15a). Moreover, Arizona's superficial reading of Malinski v.

New York, 324 U.S. 401 (1945), as according “little weight" to

the fact that the defendant, Malinski, was stripped prior to his

confession, is refuted by the very language of that case.

Justice Douglas’ opinion, strongly concurred in by Justice

Frankfurter, clearly found Malinski's dity to be a major

hen. v. Mississi „ Supra, also implies that where a state

procedural rule is not “clearly announced to defendant and coun-

sel," the State's insistence on compliance may not serve a legi-

timate state interest that outweighs a defendant's interest in

vindicating his constitutional rights. Id. at 447, 448 n.2.

Petitioner claims that under Arizona law, prior to his case,

counsel could assume that a request for a voluntariness hearing

would be treated as a request for a heari on Miranda issues as

well. (Joint Petition at C18). Arizona, however, claims that

its courts have always maintained a distinction between volun-

tariness and Miranda issues. (Response at 14).

In support of this argument, Arizona asserts that this Court

misread the case law that served as the predicate for the recent

decision of Edwards v. Ari „ 9.8. „ 68 L. 58. 2d 378

(1981). Arizona then 2 to attempt to relitigate that case

(in addition to gratuitously attacking the K ision it

lost fifteen years ogo) by discussing why “‘voluntary’ means

different things in different contexts." (Response at 13-14).

Arizona finds distinctions between the treatment of voluntariness

and issues in Arizona that were not visible to this Court

in * eee 66 L. 8. 20 at 386, and that are

con ev in the Response. Even if Arizona

were correct that the distinctions had been made, the procedural

cule was obviously not clear enough to allow forfeiture of

petitioners’ rights under Henry.

element of the coercion applied to him. See id. at 403, 405,

407, 417; Agende v. Arizona, supra, 384 U.S. at 452 n.17.?

Furthermore, Malinski's confession was made six hours after he

had been given his shoes, socks, underwear, and a blanket.

Malinski v. New York, supra, 324 U.S. at 403. Ricky Tison's

statements were much closer to the “clear case" of coercion there

described by this Court, “the product of persistent questioning

while (he) stood stripped and naked ..." Id. at 405.

Lastly, Arizona cites Haynes v. Washington, 373 U.S. 503

(1963), a pre-Miranda decision, for the proposition that “sub-

stantial deference will be given to the findings of the trial

court, even on the ultimate question of voluntariness." (Re-

sponse at 18). While that Court observed that “the determination

of the trial judge ... may be entitled to some weight even with

respect to the ultimate conclusion on the crucial issue of vol-

untariness", it flatly stated that it was “requiced" to make an

"independent determination" as to the existence of coercion. It

then found that Haynes’ confession, from “the facts presented,“

had been coerced. Id. at 515. Ricky Tison asks this Court to

grant review in order to reinvigorate this basic standard in the

context of his case.

111. The Arizona Supreme Court's failure to review the cor-

rectness of the conspiracy instructions given to the

juries in the isons’ cases presents i tant issue

concerni 3 requir nts o U Process o aw

nace ital case.

Arizona concedes that the Arizona Supreme Court “de-

clined to go into whether or not the four formal elements of the

crime of conspiracy had been enunciated ..."* in the jury instruc-

tions concerning conspiracy. (Response at 19). Petitioners’

contention on this issue is not fundamentally challenged and the

Jarizona's citation to 2245 II. 537 r. 20 15,

23 a? Cir.) E ) surprising in

view of the fast that the e Circuit = Gooré’ there — 1 —

while the sy + search in this case was an unnecessary indignity,

it is a long way from the conduct in kot nee Pues York eee

where the police kept Malinski naked for three only

partially dressed for another seven, during which period his

confession was obtained.

question remains whether this failure of appellate review on the

correctness of fundamental jury instructions in a capital case

violates due process of law.

Arizona attempts to characterize this issue as wholly

one of state law both by arguing that the Arizona Court reviewed

other aspects of the conspiracy instructions and by reiterating

the principle that state courts are the ultimate authority con-

cerning construction of state lay. (Response at 19). However,

the fact that the Arizona Court reviewed one aspect of the

conspiracy instructions does not alter the significance of its

refuse! to review the Tisons’ “arguments that the instruction did

not reflect the law of the substantive crime of conspiracy."

(17a, 39a). FPurthermore, the issue of whet a state interprets

its laws to be is entirely different from the issue presented

when a state declines to even render an interpretation of those

laws. While the former may ordinarily be a question for the

state courts, the issue of whether state laws and procedures

comport with due process is a federal question. See Mullaney v.

Wilbur, 421 U.S. 684, 691-92 (1975).

IV. The Teens“ ce#ses

connection

tenuated a

Fendant's

ocess b th

The Tisonn as petitioners maintain that due process

places limits on the extent to which a State may find one crimi-

nally liable for the acts of another, and that the jury instruc-

tions in their cases permitted the juries to exceed these limits.

Therefore, their cases present this Court with an opportunity to

clarify those limits.

Arizona claims that this Court in Pinkerton v. United

States, 328 U.S. 640 (1946) determined this issue. This argument

is in error. In Pinkerton, this Court held that someone charged

with and convicted of the crime of conspiracy could also be held

responsible for substantive crimes committed by his co-conspira-

tors in furtherance of the conspiracy. The Tisons, however, were

neither charged with nor convicted of the crime of conspiracy.

Their murder convictions cannot therefore find support in Pinker-

ton. Rather, “conspiracy* was but one of a potpourri of vicari-

ous liability theories and broad definitions offered to the

juries to link together as they saw fit if they intended to con-

vict petitioners of murder. As noted in the Petition, the trial

court's instructions would permit someone who put gas in the get-

away car before the prison escape to be convicted of first degree

murder. (Joint Petition at C24}. Petitioners therefore believe

that this case presents a clear-cut opportunity for this Court to

clarify the due process limits on such vicarious liability.

When petitioners originally filed their joint petition

for writs of certiorari on October 27, 1961, it was accompanied

by a motion to expedite consideration and to consolidate for

hearing with Enmund v. Florida, No. 81-5321, cert. granted

October 19, 1981. This Court denied the motion on November 2,

1981. If the Court decides to review their cases on the Eighth

Amendment issue, petitioners remain fully prepared to meet

whatever expedited briefing schedule the Court may require so as

to enable their cases to be argued at the same time as Enmund v.

Plorida.

CONCLUS 1ON

For the reasons stated above, Petitioners request that

this Court grant their joint petition for writs of certiorari.

Respectfully submitted, this 16th day of December 1961.

on Mew een ee

an KM. Dershowitz

20 Elmwood Avenue

Cambridge, MA 02138

(617) 661-1965

° es

Hale Dorr

60 State Street

Boston, MA 02109

(617) 742-9100

Counsel to Petitioners