Petition — DOUGLAS GRETZLER v. ARIZONA (No. 82-6556)
Supreme Court brief1982
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IN THE —
SUPREME COURT OF THE UNITED STATES
October Term 1982
yn. 82 6556
DOUGLAS EDWARD GRETZLER,
Petitioner,
vs.
THE STATE OF ARIZONA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
CARY SANDMAN
McCARTHY & SANDMAN
124 West Cushing Street
Tucson, Arizona 85701
(602) 623-0341
Attorney for Petitioner,
Douglas Edward Gretzler
QUESTIONS PRESENTED FOR REVIEW
1. Whether the petitioner's convictions in the
State of California may be used as a basis for the impo-
sition of the death penalty when the Arizona trial judge
violation of Boykin v. Alabama and its progeny.
2. Is it a violation of the federal double jeopardy
clause for the Court, in a death penalty resentencing
proceeding, to find “aggravating circumstances” that
were expressly rejected at the first sentencing proceeding?
—
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES... +--+ +++ eee 2 8 8°? iv
UITATION TO OPINIONS BELOW . 1
JURISDICTION . 2
QUESTIONS PRESENTED .--+++++s* eee ee? 2
CONSTITUTIONAL AND STATUTORY PROVISIONS 2
STATEMENT OF THE CASE 3
HOW THE FEDERAL QUESTIONS WERE RAISED AND DECIDED
Pie i sg is os ¢ 0 2 0 9 0.80 # o 8
REASONS FOR GRANTING THE WRIT OF CERTIORARI ...+-:- 11
I. This Court should grant certiorari to consider
whether petitioner's convictions in the State
of California may be used as a basis for the
imposition of the death penalty when the
Arizona trial judge found that the California
convictions were obtained in violation of
defendant's constitutional rights under
Boykin v. Alabama and its progeny cere) 07 a6 1]
Il. The Court should grant certiorari to deter-
mine if it is a violation of the federal
double jeopardy clause for the trial court
in a second death penalty proceeding to
find "aggravating circumstances" that the
prosecutor attempted to prove but that
were expressly rejected at the first sentencing
proceeding. ...-+++ 24
(oh. k 66 ¢ 60 6 ¢ 8 6 6 6 8 eee 8 8 31
APPENDIX A: State v. Gretzler, 126 Ariz. 60, 612 P.2d
— oe
APPENDIX B: State v. Gretzler, Ariz. , 659
P.2d 1 (1983)
APPENDIX C: State v. Superior Court of Arizona, 627
P.2d 1081 (1981) CN Rahs or
APPENDIX D: Supreme Court's Denial of Motion for
Rehearing (Feb. 16, 1983)
APPENDIX E: U.S. Const. Amend. V
APPENDIX F: U.S. Const. Amend. VIII
-ii-
TABLE OF CONTENTS
ont inue
Page
APPENDIX G: U.S. Const. Amend. XIV §1.
APPENDIX H: Ariz. Rev. Stat. §13-454.
APPENDIX I: Ariz. Rev. Stat. §13-703.
APPENDIX J: Statement of Facts from Appellant's
Arizona Supreme Court Opening Brief
APPENDIX K: Pima County Superior Court's Special Verdict
and Sentencing (Nov. 15, 1976)
APPENDIX L: Pima County Superior Court's Findings of
Fact and Conclusions of Law re: Defendant's Prior
California Convictions
APPENDIX M: Pima County Superior Court's Sentencing
(October 23, 1981)
APPENDIX N: Knapp v. Cardwell, 667 F.2d 1253 (9th Cir
1982) Dissenting Opinion of Judge Adams
-iii-
TABLE OF AUTHORITIES
Cases Page
Blackledge v. AlJison
431 U.S. 63, 97 S.Ct. 1621 52 L.Ed.2d 136
(1977) . 20,25
Boykin v. Alabama
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 ll
EE ete oye -e 6 6 0 97:0) 6° 44-2 BO) ee 8 33.47 ,480
Brady v. United States
397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
Cd ole: e e Wee ee 8. 8 Se ROS 17,19,24
Bullington v. Missouri 10,27,28
451 U.S. 430, 101 S.Ct. 1852 43061). 2 s+ 2 2 © 29,500.28
Bullard v. Esteile
665 F.2d 1347 (Sth Cir. 1982) cert. ranted,
102 S.Ct. 2927; vact. and remanded Pay 17,
1983) Ca a wie Ge ce 6, 167 8 eC een eee 31,32
Burgett v. Texas
389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319
SE he eek > 8 61,8 eS ee Rem Wy SU RIO Ae . 8,11,25
Correale v. United States
479 F.2d 944 (lst Cir 1973) .. +++ eee ees 18
Cooper v. State
631 S.W.2d 508 (Tex. Crim.App. See sis 6. @ &: << me) ey Pe
Duncan v. Louisiana
391 U.S. 145, 88 S.Ct. 1444 AG. 6 6 «8 6 8 8 16
Eddings v. Oklahoma, 102 S.Ct. 869 (1982) ...+ +s 23
Ex Parte Augusta .
639 S.W.2d 481 (Tex. Crim.App. 1982)... +++ 31,32
French v. Estelle
692 F.2d1021 (5th Cir. 1987} 7 eS er ae 6 ae a 31,32
Gardner v. Florida, 430 U.S. 349 (1977) - am 23
Geisser v. United States
=e. Bee CRONT) 2 <0 0 woe Sebeeue 8.9 8 * ° 18
Green v. United States, 355 U.S. 164 (1957) .~ - «© «© « 30
In re oo.
397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368
ee eh 6 AR ae 0k WOES, oar ee Mie 17
Kerchival v. United States
274 U.S. 220, 47 S.Ct. 582, 71 L.Ed
. 1009
cel) os 8
: Aa. 17
anree v. Cardwell
67 F.2d 1253 (9th Cir. 1982) cert. denied . . . .29,31,32
Linam v. Griffin
685 F.2d 369 (8th Cir. 1982) ..- + ++ +s eee 32
-iv-
TABLE OF AUTHORITIES
ont inue
Cases
Locket v. Ohi
438 U.S. 586 (1978) . .
shibroda v. United States
3$8 U.S. 487, ad §.Ct. pi 7 L.Ed. 2d ig
(1962)
Malloy v. ~—
378 U i 84 S.Ct.
36s} a as
Marshall v. Lonberger
(slip opinion, Feb. 22, 1983) .. .
Palermo v. Warden
545 F.2d 286 (2nd Cir. 1976)
Pilkington v. United States
318 F.2d 204 (4th Cir. 1963) ...+-.-s
Pointer v. Texas
389 U.S. 400, 85 S.Ct.
(1965)
Santobello v. New York
404 U.S. 257, al s.Ct.
(1971) ’ a cee
State v. Gretzler
126 Ariz. 60, 612 P.2d 1023 (1980)
State v. Gretzler
__.. Ariz. » 659 P.2d 1
siiaihiek Cour
583, 627° P.2d 1081 (1981)
State v. Steelman, 126 Ariz. 19, 612 P.2d 475
State v. Watson, 120 Ariz. 441, 586 ?.2d 1253
Swisher v. Brady
438 U.S. 204 (1978) °
United States v. Bowler
585 F.2d 851 (19 ) a a ee a ited
United States v. Gilligan
256 F.Supp. 244 (S.D. N.Y. 1956) ...
United States v. Lia
173 F.2d 685 (ath Gee, 1906). «0's 4
United States v.
691 F.2d 343 (yeh “cir. 2908) dhe e 6%
State v.
128 Ariz.
“Ve
(filed Jan. 6,
Rapa, 12 L.Ed.2d 653
i oe 13 L.Ed.2d 923
— ah L.Ed. 2d 427
1983).
Page
3, 6, 9
16
- 17,18,24
17
17,22
18
21
17
16,17
. 18,19,24
4, 3
3
1, 8
. 11,14,23
(1980).
(1978).
7
27
30
="
TABLE OF AUTHORITIES
(Continued)
Cases
United States v. Tateo
214 F.Supp. 560 (S.D. N.Y. 1963)
United States v. Timmreck
441 U.S. 780, 99
SRepee 6s 6 26 «
Von Moltke v. Gillies
332 U.S.
Waley v. Johnson
316 U.S.
Walker v. Johnston
312 U.S. 275, 61 S.Ct.
Washington v. Texas
388 U.S. 14, 87 S.Ct.
nS eRe we Sg ete 1d
Zant v. Redd
249 Ga. 211, 290 S.2d
Constitutional Provisions
S.Ct.
708, 68 S.Ct.
101, 62 S.Ct.
1920,
2085, 60 L.Ed.2d 634
316, 92 L.Ed. 1302 (1948)
964, 86 L.Ed. 1302 (1942)
574, 85 L.Ed. 830 (1941).
18 L.Ed.2d 1019
36 (1982).
and Statutes
U. S. Const., amend. V.
U. S. Const... amend. VIII
wa. Ba
Ariz.
Ariz. Rev. Stat.
Const., amend. XIV.
Rev. Stat. §13-454 .
§13-703..
-vi-
Page
16,21
15,16,21
.22,23,24
-16,17,24
16
-17,18,24
18
17
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1982
NO.
DOUGLAS EDWARD GRETZLER,
Petitioner,
vs.
THE STATE OF ARIZONA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
Petitioner prays that a Writ of Certiorari issue to
review the judgment of the Supreme Court of Arizona entered
on January 6, 1983.
CITATION TO OPINIONS BELOW
The opinions of the Supreme Court of Arizona are
reported at Ariz. p P.2d (1983)
filed Jan. 6, 1983, reproduced in appendix A; State v.
Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980) and reproduced
in appendix B; State v. Superior Court, 128 Ariz. 583,
627 P.2d 1081 (1981) reproduced in appendix C.
jac
JURISDICTION
The final judgment of the Supreme Court of Arizona
was entered on January 6, 1983, and is set out in appendix
A hereto. A timely motion for rehearing was denied
on Feburary 16, 1983. The Arizona Supreme Court's order
denying rehearing is set out in appendix D. This petition
for certiorari has been filed within sixty (60) days
of the Arizona Supreme Court's denial of the motion for
rehearing. Jurisdiction of this Court is invoked under
28 U.S.C. §1257(3), petitioner having asserted below
and asserting here the deprivation of rights secured
by the Constitution of the United States.
QUESTIONS PRESENTED
1. Whether the petitioner's convictions in the
State of California may be used ae a basis for the imposi-
tion of the death penalty when the Arizona trial judge
found that the California convictions were obtained in
viclation of Boykin v. Alabama and its progeny.
2. Is it a violation of the federal double jeopardy
clause for the Court, in a death penalty re-sentencing
proceeding, to find “aggravating circumstances" that
were expressly rejected at the first sentencing proceeding?
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case involves the Fifth, Eighth and Fourteenth
Amendments to the Constitution of the United States (appendix E,
F and G, respectively) and Sections 13-454 and 13-703
of the Arizona Revised Statutes (appendix H and I, respectively).
-2-
STATEMENT OF THE CASE
This is a petition for writ of certiorari to review
the judgment of the Arizona Supreme Court entered on
January 6, 1983, affirming petitioner's sentence to death.*
The facts which give rise to the petitioner's convic-
tion and sentence are set forth in the opinions of the
Court below. The Court is referred to appendix A {the
Arizona Supreme Court's first opinion affirming the petitioner's
conviction, 126 Ariz. 60, 612 P.2d 1023 (1980) and appendix
B the Arizona Supreme Court's opinion following resentencing,
Ariz. an, 2 oee 2 (Jan. 6, 1983)).**
As the Arizona Supreme Court's opinions did not reflect
the evidence offered in mitigation at the petitioner's
resentencing, the petitioner has attached portions of
some of the briefs filed below at Appendix J so as to
fairly characterize the mitigating evidence.
The instant prosecution resulted from the kidnapping
of VINCENT ARMSTRONG and the murders of PATRICIA and
MICHAEL SANDBERG in Tucson, Arizona, on November 3, 1973.
The petitioner and his co-defendant, WILLIE STEELMAN,
were apprehended in San Joaquin County, California, on
November 8, 1973, where they were charged with the slaying
of nine people, in Lodi, California. The instant prosecution
was delayed pending the California prosecutions.
* Petitioner's present execution date is May 23, 1983.
** In the first Gretzler opinion, the Arizona Supreme
Court affirmed the petitioner's conviction, but vacated
the petitioner's death sentence and remanded for a new
sentencing in light of this Court's holding in Locket v.
Ohio, 438 U.S. 586 (1978). (Appendix A).
Petitioner was appointed an attorney, GEORGE DEDEKAM.
On June 6, 1974, prior to his extradiction to Arizona
for the instant prosecution, the defendant was convicted
of and received nine concurrent life sentences for the
nine counts of first degree murder in San Joaquin County,
California. The California convictions resulted from
the petitioner's change of plea on June 6, 1974, before
JUDGE PAPAS in the Superior Court of San Joaquin. Prior
to pleading guilty, the petitioner was aware of the pending
murder charges in Arizona and both he and his attorney
had been advised that Arizona had a death penalty.
During the change of plea proceedings the defendant
was advised of the following by JUDGE PAPAS:
The Court: "Now Mr. Gretzler and Mr.
Dedekam, if it has been explained
to you, alright but if not,
I would like to explain to
you, that = understand that the
pleas you have entered in this
proceeding, of course, will not
affect any other charge or charges
which may be pending in any other
jurisdiction? You understand that?
Gretzler: Yes.
The Court: This only takes care of the matters
that are before this Court in this
County.
Gretzler: That means that they do not affect
either way?
The Court: That's right. That's correct. It
has nothing to do with any other
proceeding which may or has been
initiated. Excuse me. I've been
advised by counsel there is some
proceeding in another State. And
there is some proceeding in one or
two other counties. Now I am not
certain of that. But you understand,
of course, whatever action is taken
here, and your plea here does not
affect those proceedings at all.
You understand that?
Gretzler: Right, I understand that."*
Thereafter the defendant's pleas were accepted and
he was convicted of the nine counts of murder in San
Joaquin County, California.
Petitioner was convicted in November of 1975 of
the two counts of first degree murder in Tucson, Arizona.
On November 16, 1976, in accordance with the bifurcated
procedures set forth in A.R.S. §13-454 (now §13-703)
the petitioner was sentenced to death for the crimes
of first degree murder.
The trial judge followed the procedures set forth
in A.R.S. §13-454 (now §13-703). The statute requires
a separate sentencing trial before the trial judge. The
Court was required under the then existing statute to
return a special verdict setting forth its findings as
to the existence or nonexistence of the statutorily listed
aggravating and mitigating circumstances. The Court
was required to impose a sentence of death if the Court
found one or more aggravating circumstances and that
there were no mitigating circumstances sufficiently sub-
stantial to call for leniency. (A.R.S. §13-454(D) now
§13-703).
The trial judge at the first sentencing trial found
the existence of two aggravating circumstances and no
mitigating circumstances sufficiently substantial to
call for leniency. The aggravating factors found by
* The convictions in California were however used as
a basis for the petitioner's death sentence, herein.
the Court were:
"]. The defendant has been convicted
of another offense in the United States for
which under Arizona law a sentence of life
imprisonment or death was imposible.
2. The defendant was previously convicted
of a felony in the United States involving
the use or threat of violence on another
person."
[A.R.S. §13-454(E) (1) (2)]
The Court rejected and refused to find the other
listed aggravating circumstances set forth in the statute,
the urging of the prosecution to do otherwise, notwith-
standing. [The special verdict of the trial judge at
the first sentencing is set forth in its entirety at
appendix K.]
The evidentiary basis for the aggravating circumstances
found at the first sentencing were the nine California
convictions to which the defendant had pled guilty in
June of 1974. These were the same convictions that JUDGE
PAPPAS made sure that the petitioner understood could
not be used in any other proceeding.
The petitioner's conviction and death sentence were
appealed and the Supreme Court of Arizona vacated this
death sentence and remanded in view of this Court's decision
in Locket v. Ohio, supra.
Thereafter, the trial court conducted an extensive
evidentiary hearing with respect to the validity of the
petitioner's California convictions.
The defendant testified that he had not been properly
advised by his California attorney that the convictions
in California could be used under A.R.S. §13-454 to form
a basis for aggravating the sentence in support of the
death penalty.* The defendant further testified that
had he known that the nine California convictions were
to be used to enhance sentence under A.R.S. §13-454 that
he would not have pled guilty.** To make matters worse,
the petitioner was advised by the Superior Court judge
in California, who knew the use of the convictions was
of significance to the defendant, that the pleas would
not aifect any other charge or charges pending in any
other jurisdiction.
Following extensive hearings with regard to the
validity of the California pleas, the trial judge found
that the defendant was misled as to the consequences
of his guilty pleas in as much as the convictions would
affect the instant prosecution by being offered into
evidence to establish the first two aggravating circumstances
* GEORGE DEDEKAM, petitioner's California attorney,
died from lung cancer several months after terminating
his representation of the petitioner.
** The record from the evidentiary hearings leaves some
suggestion that the petitioner was never advised that
the convictions could be used against him in Arizona
because his attorney had concluded that principles of
ex post facto would have prevented the utilization of
the California convictions for enhancement purposes in
Arizona. His reasoning was grounded on the fact that
the acts which gave rise to the California convictions
occurred after the acts which gave rise to the Arizona
prosecution. Counsel believed that only convictions
which stemmed from acts occurring prior to the Arizona
prosecution could be used to enhance sentence. This,
of course, proved not to be the case. Arizona Courts
have rejected that interpretation. State v. Steelman,
126 Ariz. 19, 612 P.2d 475 (1980).
ofe
as set forth in A.R.S. §13-454 [mow A.R.S. §13-703(F)].
The trial judge concluded that the guilty pleas to the
nine counts of first degree murder in California were
not knowingly, intelligently, and voluntarily made and
that the convictions were constitutionally infirm. As
such, the trial court ruled that the convictions could
not be used to enhance punishment and could not be used
as a basis for the imposition of the death penalty in
Arizona, citing Burgett v. Texas, 398 U.S. 109, 88 S.Ct.
258, 19 L.Ed.2d 319 (1967). [The trial court's findings
of fact and conclusions of law with respect to the validity
of the petitioner's California convictions are set forth
in their entirety at appendix L.)
The prosecution sought to have the trial judge's
ruling with respect to the prior convictions set aside
and an interlocutory appeal or special action to the
Arizona Supreme Court challenging the ruling was taken.
The Arizona Supreme Court accepted jurisdiction.
In an opinion set forth fully in appendix C and cited
as State v. Superior Court, 128 Ariz. 583, 627 P.2d 1081
(1981), the Arizona Supreme Court set aside the trial
court's order and directed that he utilize the prior
convictions notwithstanding the finding that the pleas
which lead to those convictions were not knowingly, volun-
tarily, and intelligently made.
On October 23, 1981, the petitioner was resentenced
to death. The trial court rendered its special verdict.
The Court found as aggravating circumstances in support
of the death sentence the existence of the California convictions
and, in addition two additional aggravating circumstances
that he had rejected at the first sentencing. The additional
aggravating circumstances were (1) that the petitioner
committed the offenses as consideration for the receipt
or in consideration of the receipt of anything of pecuniary
value, and (2) that the petitioner committed the offenses
in an especially heinous, cruel, or depraved manner.
(A.R.S. §13-454(E), now §13-703). The Court also found
mitigating circumstances not found at the first sentencing
hearing, finding that the defendant's capacity to appreciate
the wrongfulness of his conduct or to conform his conduct
to the requirements of the law were significantly impaired.
[Special verdict from second sentencing at appendix M)
Appeal to the Arizona Supreme Court followed. The
Arizona Supreme Court affirmed the petitioner's death
sentence on January 6, 1983.
HOW THE FEDERAL QUESTIONS WERE RAISED
AND DECIDED BELOW
The petitioner raised the issue with respect to
the validity of his California convictions on his brief
in appeal from the initial conviction and sentence. The
Arizona Supreme Court declined to review the issue and
all other issues related to the death sentence in its
first opinion affirming the conviction when it vacated
the death sentence and remanded petitioner's cause for
resentencing pursuant to Locket v. Ohio, supra.
Prior to resentencing the petitioner urged the trial
judge to find that the pleas were invalid. As noted
above, the Court took extensive evidence (including testi-
mony from the California prosecutor, the petitioner,
and the defense attorney for the co-defendant) and rendered
its findings of fact and conclusions of law as indicated
above. (See appendix L for the Court's findings of facts
and conclusions of law.) The trial court's decision
was reversed by the Supreme Court of Arizona (appendix
C). At the petitioner's resentencing he again objected
to the use of the invalid convictions. However, in view
of the Supreme Court's ruling, the trial judge used the
convictions in order to enhance the petitioner's sentence.
The petitioner raised the question with respect to the
use of the convictions again on appeal from the resentencing
and in the motion for rehearing before the Arizona Supreme
Court. The Court rejected the petitioner's clain.
The double jeopardy issue was preserved for this
Court's review. Prior to his resentencing the petitioner
urged upon the trial court that the finding of additional
aggravating circumstances that the trial court refused
to find in the first sentencing would violate this Court's
holding in Bullington v. Missouri, 451 U.S. 430, 101
S.Ct. 1852 (1981). The trial court rejected the petitioner's
double jeopardy claim and went on to find additional
aggravating circumstances rejected at the first sentencing
trial (appendix M). The petitioner appealed from the
trial court's ruling to the Arizona Supreme Court. The
Arizona Supreme Court's judgment of January 6, 1983,
rejected the petitioner's claim as did their denial of
his motion for rehearing.
REASONS FOR GRANTING THE CERT
I. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER
PETITIONER'S CONVICTIONS INTHE STATE OF CALIFORNIA MAY
BE USED AS A BASIS FOR THE IMPOSITION OF THE DEATH PENALTY
WHEN THE ARIZONA TRIAL JUDGE FOUND THAT THE CALIFORNIA
CONVICTIONS WERE OBTAINED IN VIOLATION OF DEFENDANT'S
CONSTITUTIONAL RIGHTS UNDER BOYKIN V. ALABAMA AND ITS
PROGENY .
Petitioner's convictions in the State of California
were used as a basis forthe imposition of the death penalty
in Arizona. Petitioner is requesting certiorari because
the California convictions were obtained in violation
of defendant's constitutional rights, to-wit: Boykin
v. Alabama, 395 U.S. 238, 89 S.Ct. 1705, 23 L.Ed.2d 274
(1969), and its progeny. If this Court agrees, then
these felony convictions cannot be used to enhance petitioner's
sentence to death under Burgett v. Texas, 389 U.S. 109,
114, 868 S.Ct. 258, 261, 19 L.Ed.2d 319 (1967).
The Arizona trial court agreed with the petitioner's
position and found that the California felony convictions
were constitutionally infirmunder Boykin v. Alabama. However,
the Arizona Supreme Court reversed. State v. Superior
Court of State of Arizona, Etc., 128 Ariz. 583, 627 P.2d
1081 (1981).
Significantly, the Arizona Supreme Court did not
disturb the factual findings of the trial court regarding
the circumstances under which the plea was accepted by
the California trial judge. Rather, the Arizona Supreme
Court ruled as a matter of law that the guilty pleas
were constitutionally valid. Petitioner submits that
the Arizona Supreme Court misapplied the law to the trial
court's findings of facts.
efln
Before analyzing the Arizona Supreme Court's legal
conclusion, it is critical to understand that the trial
court considered ample evidence to show that the petitioner
was actively, not passively, misled by his own attorney
and very significantly by the sentencing California trial
judge regarding the effect of his guilty pleas on proceedings
in Arizona. Despite Arizona law to the contrary, to-wit:
A.R.S. §13-454, petitioner's defense counsel in California
concluded that the California convictions could not be
used to enhance petitioner's sentence in Arizona. What
is most astounding, however, are the actions of the California
trial judge. The California trial judge considered it
important to inform petitioner as to the effects of his
guilty pleas in the Arizona proceedings. After a bench
conference between the Court and counsel at petitioner's
change of pleas in California, the trial court sought
to make sure that the petitioner understood that the
guilty pleas could not be used in any other proceeding.
The petitioner responded: “That is, they do not affect
it either way?" The trial court responded: "That's
right. That's correct. It has nothing to do with any
other proceeding which may or has been initiated. =
Based on this record, the Arizona trial court found
that the guilty pleas were obtained in violation of petitioner's
constitutional rights pursuant to boykin v. Alabama,
supra. Specifically, the Arizona trial court found:
“That by being so advised, the defen
w @d as to the consequences o Ss
tod Poser Inasmuch as the convictions
affect the instant proceedings
by being offered in evidence to establish
the first two otk nang circumstances
subsection F of A.R.S. §13-703,
set forth in
to-wit:
of Sa
‘1. The defendant has been convicted
of another offense in the United States
for which under Arizona law a sentence
of life imprisonment or death was
imposable.
2. The defendant was previously
convicted of a felony in the United
States involving the use or threat
of violence on another person.'
That the defendant's guilty pleas to nine
counts of first degree murder in California
were not, therefore, knowirgly, intelligently
and voluntarily made, and the convictions
thereon are constitutionally infirm.”
{See the full text of the trial court's
findings of facts and conclusions of law
at appendix L) (Emphasis added)
The Arizona Supreme Court unequivocally affirmed
the factual findings of the trial court.* Without reserva-
tion, the Arizona Supreme Court accepted the trial court's
findings that the petitioner was misled by the trial
judge as to the effect of his California guilty pleas
upon the imposition of the death penalty in Arizona.
In its review of this matter, the Arizona Supreme Court
stated in its opinion (appendix C at p. 5 ), that:
"There was sufficient evidence from which
it could be found by the trial judge that
at the time of sentence in California
the defendant was confused, if not misled
as to the effect of his guilty plea in
California upon the imposition of the
death penalty in Arizona should he later
be convicted of the charges which were
then pending before the Arizona courts."
* The factual findings of the trial court are particularly
significant because the entire plea to the nine counts
of murder was done orally without a written plea agreement.
Relying on the record available, JUDGE DRUKE undoubtedly
concluded that the representations as to the use of the
California convictions in Arizona were a material part
of the plea. He thus found the plea was not knowingly,
intelligently, or voluntarily made.
of3.
There is not one iota of evidence to suggest that
the Arizona Supreme Court disagreed in any way what soever
with the trial court judge's factual findings.
The Arizona Supreme Court did reverse the trial
court, however, based upon its interpretation of legal
principles to the facts of this case. It is this appli-
cation of the law that is at issue. Specifically, the
Arizona Supreme Court determined that the California
judge had no duty to explain accurately the consequences
of defendant's guilty plea to him:
"The law does not require a judge in one
state to accurately explain the law of
the sister state before a plea of guilty
to a crime in the pleading state may be
accepted as voluntary."
{Appendix C at p. 6 ] [State v. Superior
Court, supra, at 627 P.2d at 1083)
The underlying premise may very well be correct,
that is, that the California judge may have had no duty
to explain the law to the petitioner before accepting
his guilty plea. But, in this case, the California judge
actively undertook such a duty by explaining to the petitioner
the effect of the guilty plea upon his proceedings in
Arizona. Once the California judge undertook such a
duty, surely he had a duty to accurately state the law.
Indeed it is because of the petitioner's reliance on
his attorney's representation and on the judge's explanation,
a material part of the plea agreement, that the petitioner
was induced to plead guilty. Further, there is the strong
suggestion that the judge thought that the petitioner's
understanding of the consequences of his plea on the
-14-
Arizona proceedings was significant to defendant's knowing
and intelligent waiver of his constitutional rights.*
The Arizona Supreme Court relied on United States
vy. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d
634 (1979) as the basis for its opinion. In Timmreck,
supra, the United States Supreme Court held that a judgment
of guilty based upon a plea of guilty was not invalid
because of a technical violation of Federal Rule 11(F),
and was not subject to collateral attack. State v.
Superior Court, 627 P.2d at 586 . Timmreck, supra,
however does not support the conclusion reached by the
Arizona Supreme Court in this case.
Defendant Timmreck sought relief on the gounds that
the trial judge had technically violated Federal Rule
ll by accepting his plea without informing him of the
mandatory special parole tern. Timmreck's attorney testified
that he probably informed Timmreck of the mandatory special
parole term and Timmreck made no claim that he was actually
unaware of the special parole term or that if he had
properly been advised by the trial judge he would not
have pled guilty. His sole claim was that there had
been a “technical” breach of Rule 1i(F). United States
v. Timmreck, supra, 441 U.S. at 784.
* That the judge explained the consequences of the
plea to the petitioner after a bench conference with
counsel raises a strong suggestion that the judge thought
that pecteatess ¢ understanding of the consequences of
his plea on the Arizona proceedings was sige ficant to
the waiver of his rights. Trial judges un ormly draw
attention to special matters that are significant to defen-
dants during change of plea procedures, especially if
those matters are relied upon by defendants as part of
their decision to plead guilty.
-15-
There are several critical distinctions between
Timmreck, supra and this case. First, Timmreck involved
a violation of a technical rule of federal procedure,
not a constitutional imperative. In this case, there
is no question that the California judge actively misled
petitioner as to the consequences of his plea. Petitioner
testified and the trial judge undoubtedly agreed that
the defendant would not have pled guilty if he knew that
the California convictions could be used to enhance any
sentence he received in Arizona. Accordingly, the circum-
stances of this case go to the heart of whether or not
the plea was voluntarily, intelligently, and knowingly
made. *
Supreme Court opinions have uniformly granted
great constitutional protection to a defendant when he
pleads guilty. Waley v. Johnston, 316 U.S. 101, 62 S.Ct.
964, 86 L.Ed. 1302 (1942 ); Von Moltke v. Gillies, 332
U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948 ); Machibroda
vy. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d
473 (1962); Santobello v. New York, 404 U.S. 257, 92
S.Ct. 495, 30 L.Ed.2d 427 (1971). Guilty pleas are
serious business consisting of waivers of fundamental
rights and inherent adjudicative elements. Santobello,
supra, United States v. Bowler, 585 F.2d 851, 853 (7th Cir.
1978). Among others, the fundamental right to a jury
trial, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,
* .- it is not claimed and it would not be material
that JUDGE PAPAS’ statements were designed either to
mislead the defendant or to induce the plea. The onl
y
quest ice is whether or not it had the effect on the defendant.
ee
20 L.Ed.2d 491 (19 68), defendant's privilege against
compulsory self-incrimination guaranteed by the Fifth
Amendment and the Sixth Amendment right of the defendant
to confront his accusers, Boykin v. Alabama, supra,
Pointer v. Texas, 38 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d
923, to present witnesses in one's defense, Washington
v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019,
to remain eilwnt, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct.
1489, 12 L.Ed.2d 653, and to be convicted by proof beyond
all reasonable doubt, In re Windship, 397 U.S. 358,
90 S.Ct. 1068, 25 L.Ed.2d 368 (1927 ) are waived.
It is far more than an admission; it is consent
by the defendant to conviction without atrial. Brady
v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468,
25 L.Ed.2d 747 (1970).
For a waiver of these constitutional rights to be
valid it must not only be voluntary, but also a knowing,
intelligent act done with sufficient awareness of the
relevant circumstances and likely consequences. Brady,
supra, 397 U.S. at 748, 90 S.Ct. at 1468.
The effective waiver of constitutional rights are
governed by federal standards. Marshall v. Lonberger,
Glip op. decided Feb. 22, 1983), Boykin v. Alabama, supra,
395 U.S. at 243.
For many decades, since Kercheval v. United States,
274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927 ), this
Court has recognized that unfairly obtained guilty pleas
in federal courts must be vacated. Accord Santobello,
supra; Machibroda, supra; Von Moltke, supra; Waley, supra.
In determining whether a guilty plea has been unfairly
obtained and therefore an ineffective waiver of defendant's
-17-
rights this Court has for many years scrutinized the
conduct of the prosecution, This Court has, without
hestitation, vacated guilty pleas because the prosecutor
has threatened physical harm, Waley, supra; the prosecutor
has threated to use false testimony, Waley; the prosecutor
has threated to bring additional prosecutions, Machibroda,
supra; or when the defendant has not been warned of his
right to counsel, Walker v. Johnston, 312 U.S. 275, 61
S.Ct. 574, 85 L.Ed. 830 (19 41).
However, this Court has also made it clear that
a prosecutor's promise may deprive a guilty plea of the
“character of a voluntary act". Machibroda, supra, 386
U.S. at 493, 82 S.Ct. at 513. Santobello, supra, 404
U.S. at 266, 92 S.Ct. at 501. Empty promises made by
prosecutors as to sentencing and other consequences of
a defendant's guilty plea have been the subject of strict
scrutiny in the Courts. Machibroda, supra, Santobello,
supra, Correale v. United States, 479 F.2d 944, 947 (lst
Cir. 1973), United States v. Bowler, 585 F.2d 851 (7th
Cir. 1978). See also Palermo v. Warden, Greenhaven State
Prison, 545 F.2d 286 (2nd Cir. 1976), petition for certiorari
dismissed 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221
(1976); Geisser v. United States, 513 F.2d 862 (5th Cir.
1975). Very meticulous standards of promises and performance
in a plea agreement must be met by the prosecutor. In
Santobello, supra, the defendant pled guilty to possession
of gambling records in the second degree after negotiating
a deal with the prosecutor that all of the more serious
charges would be dismissed and the prosecutor would agree
to make no recommendation at to sentence. None of this
-18-
was in the record, However, at the sentencing, a new
prosecutor recommended the maximum sentence and the judge
imposed the maximum sentence. The Court held that the
interests of justice and the proper recognition of a
prosecutor's duty in relationship to promises made in
connection with any agreement as to a plea of guilty
required that the judgment be vacated, In so ruling,
the Court emphasized its concern with promises made by
the prosecution in the plea agreement process:
"(The acceptance of a plea of guilty) must
be attended by safeguards to insure the
defendant what is reasonably due in the cir-
cumstances. Those circumstances will vary,
but a constant factor is that when a plea
rests in any significant degree on a promis-
sory agreement of the prosecutor, so that
it can be said to be part of the inducement
——— such promise must be ful-
illed."
[Santobello, supra, 404 U.S. at 262, 92 S.Ct.
at 499)
An analysis of the voluntariness of a guilty plea and
the waiver of fundamental constitutional rights by the
defendant does not stop with the prosecution. Such judicial
scrutiny must extend to all of the participants including
defendant's counsel and the judge. In Brady v. United
States, supra, the Court placed the participation of
the prosecution, the defendant's own counsel and the
Court on a par. This Court ruled that it was essential
to consider:
one eo""nia' [the defendant]: by the court ;
prosecutor or his own counsel. . .
(er v. United States, 397 U.S. at 753,
-19-
In Blackledge v. Allison, 431 U.S. 63, 97 S.Ct.
1621, 52 L.Ed.2d 136 (1977), this Court ruled that a genuine
issue as to the voluntariness of a guilty plea was
raised based on the promises of the defense counsel to
him corroborated by consultations with the judge and
the prosecutor.
Indeed, this Court has never made a distinction
between the promises of the prosecutor and the promises
of the sentencing judge. The very rationale behind the
acceptance of plea bargaining by the Courts vould preclude
such a distinction. The quid pro quo for the acceptance
of a guilty plea by the defendant without a trial by
judge or jury is that the plea is voluntarily made and
that any waiver of defendant's constitutional rights
is made knowingly and intelligently. See for example
United States v. Mercer, 691 S.2d 343 (7th Cir. 1982).
In Mercer, the defendant pledguilty to a felony and received
a sentence of 15 years. Prior to accepting the plea,
the Court had assured the defendant that he would receive
no more than 10 years. The Seventh Circuit held that
the plea was an unconstitutionally inadequate basis for
defendant's imprisonment because the promise of a judge
had induced the defendant to plead guilty. In so ruling,
the Seventh Circuit noted the strong significance of
a judge's assurances:
“Appellant does not claim a mere technical
violation of the formal provisions of Rule
ll. The error committed below is of con-
stitutional magnitude, since the waiver
of defendant's constitutional rights were
based on a promise that was unkept, and
the actual consequences of pleading guilty
were contrary to the consequences conveyed
to the defendant by the district court
-20-
prior to the acceptance of the mage plea.
The realities vitiate the knowing voluntary
nature of defendant's guilty plea.”
[United States v. Mercer, supra, 691 F.2d
at 347)
See also United States v. Gilligan, 256 F.Supp.
244 (S.D. New York, 1956). In Gilligan, supra, prior
to defendant's guilty plea, the judge promised him a
maximum of a ten year sentence. The judge sentenced
him in violation of that promise. The District Court
held that the plea was involuntary because of the breach
of the judge's promise:
"A guilty plea predicated upon a judge's
promise of a definite sentence by its very
nature does not qualify as a free and
voluntary act. Theplea is so interlaced
with the promise that one cannot be separated
from the other; remove the promise and
the basis for the plea falls."
{United States v. Gilligan, supra, 256
F.Supp. at 253, 254)
{Accord United States v. Tateo, 214 F.Supp.
560 (S.D. New York 1963); Pilkington v.
United States, 315 F.2d 20% (ith Cir. 1963);
United States V. Lias, 173 F.2d 685 (4th
Cir. 1949).
What we have here is far cry from the mere technical
violation alleged in Timmreck, supra. The issue here is
whether defendant's guilty plea in California survives
the rigors of constitutional scrutiny, not technical
violations of procedural rules.
Besides the enormous constitutional considerations
involved with the acceptance of the petitioner's guilty
pleas by the California court, there is a second consideration
which distinguishes this case from Timmreck. Unlike
this case, Timmreck, supra, involved no lower court factual
atta
finding that the defendant relied on the advice of his
defense counsel or the judge or indeed that the plea was
not knowingly, voluntarily, or intelligently made. This
Court has over and over again recognized and emphasized
the deference to be accorded to the trial judge when
making evaluations of this nature. Again, very recently,
this Court emphasized that deference to the trial court
judge in the area of making determinations as to the
voluntariness of the guilty plea. Marshall v. Lonberger,
supra, (slip op. at pp. 11-12):
"As was aptly stated by the New York Court
of Appeals, although in a case of a rather
different substantive nature:
‘Face to face with living witnesses the
original trier of the facts holds a posi-
tion of advantage from which appellate
judges are excluded. In doubtful cases
the exercise of his power of observation
often proves the most accurate method of
assertaining the truth . . . how can we
say the judge is wrong? We never saw the
witnesses ... . The sophistication
and sagacity of the trial —_ the law
confides the duty of appraisal.'"
[Boyd v. Boyd, 252 N.Y. 422, 429 (United States
v. Oregon Medical Society), 343 U.S. 169, I80-
ISI T1852), Marshall, supra, at p. ll-12)
_Here the trial judge was in the best position to evaluate the plea.
Third, unlike Timmreck, the petitioner in this case has
suffered prejudice in the most severe degree because
he would never have pled guilty if he had been given
correct advice and the trial judge had so found. In
Timmreck, there was no such viable claim. In fact, defendant's
attorney testified that he probably advised the defendant
of all the applicable penalties and the defendant never
claimed that he would not have plead guilty if he was
correctly advised.
In this case, the entire and extensive dialogue
that occurred between the judge and the defendant amply
demonstrates the concern of the defendant about the conse-
quences of the California guilty plea on the proceedings
in Arizona. In fact, everyone agrees, including the
Arizona Supreme Court, that the defendant was misled
as to the effect of his guilty plea upon the proceedings
in Arizona. State v. Superior Court of the State of
Arizona, Etc., supra, 128 Ariz. at 585.
Finally this case, unlike Timmreck, involves the
imposition of the death penalty. Because death cases
have consequences of such finality, this Court has gone
to extraordinary measures to ensure that the petitioner's
sentence to be executed is afforded full protection of
all constitutional guarantees. Eddings v. Oklahoma,
U.S. , 102 S.Ct. 869, 878 (1982) (O'Connor,
J. concurring). See also Gardner v. Florida, 430 U.S.
349, 357-58, §.Ct. (1977) (plurality Op.);
id, at 363-364 (White, J., concurring). This Court in
Gardner, supra, eloquently statedits concern about
constitutional protection to defendants who face a death
sentence:
"Death, in its finality, differs more from
life imprisonment than a hundred year
prison term differs from one of only a
year or two. Because of that qualitative, dif ference
there is a corresponding difference in
he need for reliabiiity and the deter:
mination that death is the appropriate
t = (Fic case.”
punishment in 4 spec
[Furman v. Georgia, id. at 304-305) [Emphasis
adde ardner, supra, 430 U.S. at 363
-23-
The breach of the judge's promise in this case did
not lead to an extra ten, 20, 50, or even 100 years being
added on to defendant's sentence in Arizona; rather,
the breach of the judge's promise led to the enhancement
of defendant's sentence in Arizona to death. Timmreck,
supra, as such, is ina totally different category than
this case.
Conclusion
This Court has readily and repeatedly granted a
strong constitutional shield to defendants when they
plead guilty to ensure that the guilty plea is voluntary
and is a knowing and intelligent waiver of his fundamental
constitutional rights. Without hesitation, this Court
has extended that shield to cases where defendant's guilty
plea has been induced by prosecutorial misconduct. Waley
vy. Johnson , supra; Von Moltke v. Gillies, supra; Machibroda
v. United States, supra.
This Court has also, without hesitation, extended
this constitutional protection to defendants where guilty
pleas have been induced by prosecutorial promises, especially
as to sentencing, even absent any prosecutorial misconduct.
Machibroda v. United States, supra; Santobello v. New
York, supra.
Further, in the course of its rulings, this Court
has placed the participation cf the prosecution, defendant's
own counsel, and the Court on an equal basis, Brady,
supra, and has suggested that judicial promises in Court
in corroboration with defendant's own counsel's advice
=2h-
raise an issue as to the voluntariness of the guilty
plea. Blackledge, supra. In fact, this Court has never
made a distinction between the promises of the prosecu-
tion and the sentencing judge in determining whether
a guilty plea meets federal constitutional standards
pursuant to Boykin v. Alabama, supra, and its vrogeny.
Petitioner now sets the stage for this Court to
affirmatively allow the constitutional shield of Boykin
vy. Alabama to embrace the situation where (1) it is expli-
citly found by the trial court and affirmed by the Court
of Appeals that defendant in his oral plea agreement
was misled by the promises of a judge on the record as
to the effects of the acceptance of the guilty plea on
proceedings in another state; and (2) that the promise
induced defendant to plead guilty and defendant would
not have pled guilty but for that promise; and (3) the
breach of this promise made the difference between life
and death in the original sentencing proceedings in the
other state.
The entire history and rationale supporting the
acceptance of guilty pleas by defendants who voluntarily
accept conviction and waive fundamental and grave consti-
tutional rights insist on the extension of Boykin v.
Alabama to this case. If this Court so finds, the defen-
dant's guilty pleas should not be used to enhance the
sentence to death under Burgett v. Texas, supra.
-25-
II. THE COURT SHOULD GRANT CERTIORARI TO DETERMINE IF
IT IS A VIOLATION OF THE FEDERAL DOUBLE JEOPARDY CLAUSE
FOR THE TRIAL COURT IN A SECOND DEATH PENALTY PROCEEDING
TO FIND "AGGRAVATING CIRCUMSTANCES" THAT THE PROSECUTOR
ATTEMPTED TO PROVE BUT THAT WERE EXPRESSLY REJECTED AT
THE FIRST SENTENCING PROCEEDING.
Petitioner's rights under the double jeopardy clause
were violated at the second sentencing hearing. Petitioner
was originally sentenced in 1978 under the 1973 Arizona
death penalty statute which requires the sentencing court
to "return a special verdict setting forth its findings
as to the existence or nonexistence” of each of six statu-
torily specified aggravating circumstances. See Arizona
Revised Statutes §13-454(C) (mow A.R.S. §13-703(D). [Appendix
HandI} At petitioner's first sentencing hearing, the
Court found that the State had proved the existence of
only the first two aggravating circumstances speci-
fied in former A.R.S. §13-454, that:
"1. The defendant has been convicted
on another offense in the United States for
which under Arizona law sentence of life
imprisonment or death was imposable.
Be The defendant was previously convicted
of a felony in the United States involving
the use or threat of violence on another
person."
These aggravating circumstances were based on petitioner's
nine California guilty pleas which are discussed above.
The Court also specifically found that the State had not
been able to prove the existence of any of the four remaining
aggravating circumstances set forth in the statute. [See
the Court's special verdict after first sentencing, Nov.
15, 1976, Appendix K }
Petitioner's original sentence was vacated by sua
sponte order of the Arizona Supreme Court in State v.
-26-
Watsen, 120 Ariz. 441, 586 P.2d 1253 (1978) cert. denied,
440 U.S. 924 (1979). The Arizona Supreme Court further
ordered that petitioner be resentenced in accordance
with its opinion in Watson.
At petitioner's resentencing hearing, the prosecution
sought to prove aggravating circumstances which it had
attempted to prove at the first sentencing but that the
Court expressly found did not exist. The sentencing
Court accepted the proof over petitioner's objection
and ultimately returned a special verdict which listed
two additional aggravating circumstances which had been
found not to exist at the first sentencing proceeding.
Petitioner argued below that this was a violation of
his rights under the double jeopardy clause and contrary
to this Court's recent decision in Bullington v. Missouri,
451 U.S. 430 (1981). [See special verdict of resentencing
at appendix M )
In Bullington, this Court extended the protection
of the Fifth Amendment's double jeopardy clause to sentencing
proceedings. Bullington held that the prosecution could
not again seek the death penalty after defendant's retrial
where the initial sentencing proceeding resulted in a
sentence of life imprisonment. In so holding, this Court
focused on the nature of the sentencing hearing at issue,
finding that Missouri's separate, adversarial sentencing
procedures had important similiarities to a trial on
the issue of guilt or innocence. The key aspects of
the Missouri sentencing proceeding are captured in the
following passage from Justice Blackman's opinion in
Bullington:
a22-~
"The jury in this case was not given un-
bounded discretion to select an appropri-
ate punishment from a wide range authorized
by statute. Rather, a separate hearing
was required and was held and the jury
was presented both a choice of two alterna-
tives and standards to — the making
of that choice. Nor did the prosecution
simply recommend what it felt to be an
mag a ny punishment. It undertook
the burden of establishing certain facts
beyond a reasonable doubt in its quest
to obtain the harsher of the two alterna-
tive verdicts. The presentence hearing
resembled and, indeed, in all relevant
respects was like, the immediately prece-
ding trial on the issue of guilt or innocence.
Yt was itself a trial on the issue of
punishment so precisely defined by the
Micsouri statute.
[Id. at 1858) [Emphasis added)
This Court concluded that the prosecution's failure
to "prove its case" in the defendant's first sentencing
hearing barred its attempts to again seek the death penalty
in defendant's resentencing hearing. Again, the focus
of this Court's double jeopardy analysis was on the similar-
ities between the Missouri sentencing procedures and
a trial on the issue of guilt or innocence:
“By enacting a capital sentencing procedure
that resembles and is like a trial on the
ta of pt eg pre pata however, ae
souri e icit requires the jury to deter-
mine whether the prosecution has ‘rowed
its case’ ° itihe sentence to life
imprisonment which petitioner received at
his first trial meant that ‘the jury has
already acquitted the defendant of what-
ever was necessary to impose the death sen-
tence’.
(Id. at 1861) (Emphasis in original)
The Missouri capital sentencing procedure at issue in
Bullington and the Arizona procedure involved in this case
are strikingly similar:
-28-
1. In both Missouri and Arizona the sen-
tencing body's discretion is limited to two
choices: life imprisonment without the
possibility of parole for an extended period
of time, or the death penalty;
2. In both Missouri and Arizona a separate,
adversarial re hearing with many of
the hallmarks of a trial on che issue of
guilt or innocence is held;
3. Under both the Missouri and Arizona pro-
cedures the prosecution has the burden of
proving beyond a reasonable doubt the existence
of certain specified aggravating circumstances;
4. Finally, although the sentencing body's
discretion is restricted under both procedures,
both Missouri and Arizona permit the sentencing
body to determine whether any mitigating cir-
cumstances exist and whether they outweigh the
aggravating circumstances.
Given these similarities, the holding in Bullington applies
with equal force to the Arizona sentencing procedures.
Thus, the protections of the double jeopardy clause should
have been available to petitioner during his second senten-
cing hearing.
Indeed, as noted by JUDGE ADAMS in his dissent in
Knapp v. Cardwell, 667 F.2d 1253 (9th Cir. 1982), the
case for applying federal double jeopardy principles
to the Arizona sentencing procedure is even stronger:
“The court [in Bullington] placed great
emphasis on the trial like nature of the
Missouri death neg procedure pre-
cisely hecause that similarity supported
the inference that a life sentence arising
out of the peggy me | was in effect an
acquittal of the factual predicate for
a death sentence [citation omitted]. Here
we are not confronted with the task o
rT a
sentence; rather, sent situation
we have explicit factual findings of the
gentencin udge at the initial hearin
as to @ existence or nonexistence of
Tavating circumstance.
h enumerated
~29-
bag me from ebeees) If egg sentence
n Bullington constituted, for purposes
of double Jeopardy, an ‘acquittal’ of
aggravating circumstances that would be
necessary to sustain a death sentence,
to the nonexistence of an ager av: ig
[rcumstance.. . . is not an acquittal
P that aggravation, and of any death
entence eS even in part on that aggrava-
jo |p
rtieio
{667 F.2d at 1267) (Emphasis added)
Thus, application of the double jeopardy clause
to the Arizona sentencing procedure is even more clearly
mandated under the Bullington analysis, the Ninth Circuit's
decision in Knapp v. Cardwell, supra, to the contrary
notwithstanding.
If Bullington applies to the Arizona death penalty
sentencing proceedings, the sole remaining question is
whether the double jeopardy clause is violated in this
case where the government failed to prove certain aggrava-
ting circumstances at petitioner's first sentencing hearing
but was nevertheless permitted to prove them at the second
sentencing hearing. Although this Court has never squarely
addressed this issue, we believe that this is the classic
case of precisely what double jeopardy is intended to
prevent: the State missing on the first swing and then,
wholly on its own motion, taking a second swipe at the
same defendant. As was stated in Swisher v. Brady, 438
U.S. 204 (1978), the double jeopardy clause means that
one fair shot is enough and the State is forbidden a
“second crack". Id. at 215-216. See also Green v. United
States, 355 U.S. 184 (1957), ("The underlying idea .
. . ie that the State with all its resources and power
-30-
should not be allowed to make repeated attempts to convict
an individual for an alleged offense..." id. at 187).
Furthermore, the decision of several federal and
state courts suggest that the federal double jeopardy
clause does prevent precisely what occurred here: the
State failing to prove part of its case in one sentencing
hearing and then taking a second shot at the same defendant
upon resentencing. Bullard v. Estelle, 665 F.2d 1347
(Sth Cir. 1982), cert. granted, 102 S.Ct. 2927 (1982,
vact. and remanded (Jan. 17, 1983); French v. Estelle,
692 F.2d 1021 (Sth Cir, 1983). See also dissenting opinion
of Judge Adams, Knapp v. Cardwell, 667 F.2d 1253 (9th
Cir. 1982, cert. denied (appendix N); Cooper v. State,
631 S.W.2d 508 (Tex Cr.App. 1982); Ex Parte Augusta,
639 S.W.2d 481 (Tex CR.App. 1982).
In Bullard v. Estelle, supra, the Fifth Circuit
has held that it is a violation of the double jeopardy
clause to permit the State, at resentencing, an opportunity
to prove an enhancement allegation it failed to prove
at the first sentencing.
In Cooper v. State, supra the Court refused, under
Bullington, to allow the State to prove at a resentencing
hearing the existence of a prior conviction that the
State failed to adequately prove at the first sentencing.
"We spovenere bese as © patter A 9 pea .
constitutional law compelled by Bullington that
if the State fails to sufficient prove
all facts pesceree? to find an enhancement
paragraph ‘true’ the State may not at a
new year in that cause, have a second oppor-
tunity to prove original allegations."
[Cooper v. State, supra, at 514)
-3l-
In all the cases cited above: Cooper v. State,
supra, Ex Parte Augusta, supra; Bullard v. Estelle; French
v. Estelle, supra, the focus is on “habitual offender"
statutes. In those cases the State failed to adequately
prove the existence of one of the defendants’ prior con-
victions and those courts have interpreted Bullington as
preventing the State from attempting to prove at resentencing
what they failed to prove at the first.
The cases emphasize that the State should not be
able to have a second chance at proving an enhancement
paragraph true. The same is true here. The State failed
to prove allegations at the first sentencing. They "failed
to prove enhancement paragraphs true", Ex Parte Augusta,
supra, at 484,
There now appears to be a growing conflict as to the
full import of the Bullington ruling. See Knapp v. Cardwell,
supra; (J. Adams dissenting op.); Linam v. Griffin, 685
F.2d 369, 376-79 (J. Andersonconcurring); Ex Parte Augusta,
supra; French v. Estelle, supra; cortra, Knapp v. Cardwell, swra,
(majority opinion); Linam v. Griffin, supra, (majority
opinion); Zant v. Redd, 249 Ga. 211, 290S.£.2d 36 (1982)
{holding that double jeopardy does not attach to aggravating
circumstances in a death penalty case).
The following passage from Cooper reflects what
is at stake in this case:
"To allow the State to attempt at a new
hearing to produce the proof that it could
not produce at the initial hearing is
to again subject the defendant to jeopardy.
Bullington tells us that the double jeopardy
Clause can apply to punishments when the
unishment depends on whether the State
s proved or failed to prove specific
-32-
punishment allegations. When the punishment
does depend on such allegations and the
State fails to prove them initially, the
State may not attempt to make the defendant
endure a relitigation of the issue."
(631 S.W.2d at 513)
Petitioner believes that the above passage correctly
states the Bullington analysis as it applies to this
case and requests relief from the opinions of the Arizona
Courts to the contrary.
CONCLUSION
Based on the foregoing reasons, this Honorable Court
should grant petitioner's Writ Certiorari.
RESPECTFULLY SUBMITTED this 15th day of April, 1983.
Attorney for Petitioner
Douglas Edwar¥ Gretzler
-33-
re
RECEIVED
RES IS.1983
SUPREME Counr ry
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1982
vo. 82 6556
DOUGLAS EDWARD GRETZLER,
Petitioner,
vs.
THE STATE OF ARIZONA,
Respondent.
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
APPENDIX A:
STATE v. GRETZLER
126 Ariz. 60, 612 P.2d 1023 (1980).
STATE v. GRETZLER
Ariz. 1023
Cite as, Arta, 612 P26 1023
126 Ariz. 60
The STATE of Arizona, Appellee,
’.
Douglas Edward GRETZLER, Appellant.
No. 3750.
Supreme Court of Arizona,
In Bane.
April 21, 1980
Ralearing Denied June 3, 1980.
Defendant was convicted in the Super
or Court, Pima County, Cause Nos. 24565
and 2? 57, William E. Druke, J., of burgla-
ry, kidnapping for robbery with a gun, two
counts <f robbery with a gun, and two
counts of firstdlegree murder. Defendant
was sutenced to death for the two counts
of .sacter and not less than 25 years nor
1», thas SO years each for crimes of rob-
tar’, burglary and kidnapping to run con-
ntly. On appeal, the Supreme Court,
~, J, held that: (1) trial court did
nt «ia denying several motions to dis-
ris cod jury indictments, (2) defend-
eodition nghts aod right to speedy
- «ate rule and Federal Constitu-
- tot wielated; (3) trial court did
» its diseretion in ordering that
ard codefendant be tned sepa-
- in consolidating certain crimes for
' ( ) deciston that defendant was com-
) stand trial was supported by ev)-
) objections to identification wit-
ne « ull not be sustained; (6) prosecu-
t ‘ telal court were not guilty of with-
hel“... information which should have been
docte d to defense; (7) defendant's claims
cone...ing jury could not be sustained, (8)
cei. ° at's contessions were properly ad-
bs «into evidence; (9) defendant's objec-
toe: + evidentiary rulings could net be
suat |, }, (10) teial court did not reversibly
ere in miscelleneous rulings made during
iui, CL.) trial court did not err in rulings
_+ expenditure of public funds for
de (17) claims of misconduct of trial
j . prosecutor's office could not be
” ~od (13) defendant was entitled
‘ sscing based on constitutional
t; to w ath penalty statute.
ved and remanded
1. Grand Jury eM
Where a prosecutor limits himself to
only one role, his having observed part of
police investigation will not disqualify him
from appearing before grand jury in the
role of prosecutor.
2 Grand Jury @
Prosecutors who are not presenting evi-
dence may attend grand jury proceedings
17 ARS. Rules of Criminal Procedure, Rule
125.
3. Grand Jury 15
Ultimate question in cases where it is
alleged that grand jury is tainted is wheth-
er each juror can base his decision solely on
evidence presented to him and the law
4. Indictment and Information o10,1(4)
With respect to murder and other in-
dictments, there was no evidence to indicate
that grand jurors based their decisions on
evidence other than the evidence presented
5. Indictment and Information 14
Motion to dismiss indictment which
was not raised until six months after filing
was untimely. 17 ARS Rules of Criminal
Procedure, Rule 12.9, subd. b
6 Constitutional Law @*242.1(1)
Extradition rule which provides in-
state prisoners with notice of detainers filed
against them, while out-of-state prisoners
are given no such notice, does not violate
equal protection principles. 17 ARS. Rules
of Criminal Procedure, Rules 8.3, 8.3, subs
a, b; USCAConst. Amend. 14; A.RS.
§ 31-481, Arts. I et seq, IIIc).
7. Criminal Law @=1137(2)
A defendant may not obtain a continu-
ance and then assert, on appeal, failure to
comply with speedy trial rule as ground for
retrial. 17 A.RS. Rules of Criminal Proce-
dure, Rule 84, subd. a
8 Criminal Law @=577.10(8)
Time limit from arraignment to trial
was not violated where continuances which
.. en b
Sr ame |
1024 Ariz
delayed trial were obtained by defendant as
result of motions he was entitled in law to
make and were “on behalf of the defend-
ant.” 17 A.RS. Rules of Criminal Proce-
dure, Rule 8.4, subd. a
9. Criminal Law @°577.11(4)
Rule which requires trial within 150
days of issuance of warrant does not apply
to defendants being held without the state
when the warrant is issued. 17 ARS.
Rules of Criminal Procedure, Rule 8.2, subd.
a
10. Criminal Law @*577.11(4)
Incarceration in another jurisdiction
does not abrogate state's duty to seek early
determination of charges against defend-
ant.
11. Criminal Law @*577.11(4)
Statutorial limit of 150 days from i»
suance of warrant to trial was not violated
since the time defendant was incarcerated
outof-tate was excluded from computa-
tion of speedy trial limita. 17 ARS. Rules
of Criminal Procedure, Rule 84, subd. a
12. Criminal Law @*577.10(8), 577.1114)
Defendant's federal constitutional right
to speedy trial was not violated where rea-
sons for delay were voluminous defense mo-
tions and unavailability of defendant due to
charges against him in California.
13. Criminal Law @622(2)
Trial court did not abuse its discretion
in ordering that defendant and codefendant
who were involved in murder spree should
17 ARS. Rules of
ARS. Rules of Criminal Procedure, Rule
13.3, subd. «.
15. Criminal Law @=6€20(1)
612 PACIFIC REPORTER, 24 SERIES
sion and were part of common frarme &°
plan. 17 ARS. Rules of Crimin | s‘rvc
dure, Rule 13.3, nubds. a(2, 3), ¢.
16. Criminal Law @*625
Trial court's decision that def .ndan:
was competent to stand trial was su. ort’ <
by evidence which included tesiin. ay of
two psychiatrists who examined defe odant
17 ARS. Rules of Criminal Proced: .¢, Rule
ILL
17. Criminal Law @»339.10(7)
Identification testimony of witn 4 t7!.0
shared a “crash pad” with defend: * ¢.w
night and spent two-and-one-half di. ri
him in car en route to California w) Lu...
on independent recollection and not on 5
lice photographs and was properly ra.rie
ted.
18 Criminal Law @= 339.10(11)
Identification testimony of witn..s i»
was kidnapped by defendant was b = i ©
his own experience and indepenie .
lection rather than on comment of | 41.“
witness that defendant was “clean 4 «>,”
or on witness’ glimpse of defenda.: ) .
before hearing and was properly ad...ictr:
19. Criminal Law 700
Prosecutor did not improperly +... '.h-.
background information on prospective jur-
ore from defendant 17 ARS. Pubes of
Criminal Procedure, Rules 15.1 et ee, 15.7.
20. Criminal Law @= 700
Prosecutor and trial court did rot deny
disqualify juror unless there is evidence
STATE v. GRETZLER
Anz 1025
Chee on, Arta, 612 P28 1073
had been tainted by excessive pretrial pub-
licity
23. Jury @ 341)
Use of voter registration lists as sole
source of jurors is not constitutionally in-
firmed absent a showing of systematic ex-
clusion in compiling such lists ARS
§ 21-301, subd. A.
24. Jury o 31)
Even though there may have been un-
derrepresentation as to particular jury ve
nire with respect to Spanish-Amercans on
jury, such underrepresentation was not due
to systematic exchusion in jury selection
process. A.RS. § 21-301, subd. A.
25. Jury @131(13)
Trial court did not abuse its discretion
as to jury voir dire procedure in which each
prospective juror was individually ques
tioned from questionnaire jointly formulat-
ed by prosecutor, defense attorney and trial
judge and defense attorney and prosecutor
asked questions when they deemed it neces-
sary to do so, 17 ARS. Rules of Criminal
Procedure, Rule 14.5, sutxl. d
26. Jury @ 134(4)
Trial court did not err in limiting de-
fense to ten peremptory jury challenges
despite contention that significant prejudice
pmong potential jurors because of pretrial
publicity required more challenges. | 17
ARS. Rules of Criminal Procedure, Rule
18.4.
77. Criminal Law @ 454(1)
Publicity is chief factor a trial judge
should consider when determining whether
to sequester a jury, 17 ARS Rules of
Criminal Procedure, Rule 194
28. Criminal Law @1174(5)
Providing jury with censored newspe-
pers during recesses so that they would not
feel totally left out of news was not inher-
ently prejudicial on ground that excisions
from papers indicated to jurors the fact
that the trial was newsworthy.
2). Criminal Law @ 852
Judge's pretrial caution to jury admon-
iuhing them not to read anything about
case, and informing jury that sequestration
was the alternative, was not improper. 17
A.RS. Rules of Criminal Procedure, Rule
19.4
30. Criminal Law @°51%1)
A confession will be found involuntary
where the court, considering all circum-
stances, determines that one of following
factors exists: (1) impermissible conduct by
police, (2) coercive pressures not dispelied,
or (3) confession derived directly from prior
involuntary statement.
31. Criminal Law @531(3)
Evidence before trial court supported
finding that defendant's confessions were
voluntanly made
32. Criminal Law @ 6413
An attorney need not be provided by
the state to a defendant who is in custody
in another state before questioning until
that defendant is brought into and within
custody and jumsdiction of state
33. Criminal Law @* 412.2(4)
Defendant's statements made while in
custody in California while being ques
tioned by Arizona authorities were not ren-
dered inadmissible by fact that defendant
had not yet been appointed Arizona counsel
M. Criminal Law @ 671
Once » defendant's statement has been
admitted as a result of hearing outside
presence of jury, defendant may not chal-
lenge statement’s admissibility before jury,
although he may challenge its voluntariness
on cross-examination. 17 A.RS. Rules of
Criminal Procedure, Rule 16.2.
35. Criminal Law @*713
Trial court's action in prohibiting men-
tion of death penalty did not unduly limit
defendant's arguments with respect to vol-
untariness of his statements where death
penalty was not a factor in defendant's
confessions since he admitted that he did
not know that Arizona had death penalty at
time he miade statements.
36. Witnesses @ 311
Impeachment goes to credibility of wit-
ness
1026 Aris.
37. Witnesses @» 345(1)
Conviction of a felony is material to a
witness’ credibility.
38 Witnesses © 337(5)
A witness may be impeached by prior
felony conviction even if witness is also the
defendant and prior felony conviction was
for crime that occurred after crime which
witness is being tried as defendant.
39. Witnesses @= 337(5)
Defendant's California convictions,
based upon crimes that occurred after the
crimes for which he was being tried, could
be used to impeach defendant when testify-
ing in his own behalf
40. Criminal Law © 355
Evidence of voluntary intoxication is
admissible only to negate specific intent.
ARS. § 13-182.
41. Criminal Law © 355
Testimony concerning intoxication
should be limited to time of crimes for
which defendant is being tried ARS
§ 13-132
42. Criminal Law @ 355
Trial court did not erroneously limit
testimony which could be offered to support
defendant's drug intoxication defense
where it appears that no one could testify
as to effect of drugs on defendant at time
of crimes A.RS. § 13-132
43. Criminal Law © 438(5)
Admission or exclusion of photographs
of murder victims is left to trial judge's
ti :
4. Criminal Law ©4385)
As long as photographs of murder vic-
tins have probative value, they are admissi-
ble, even though they may arouse emotions
of jury.
45. Criminal Law @=434(6)
Black and white photographs showing
fully dressed murder victims, bound and
gagged, as discovered by police, were ad-
missible as tending to corroborate State's
theory of how the homicide was committed,
» to iNustrats and explain testimony, and to
612 PACIFIC REPORTER, 24 SERIES
prove malice aforethought. A.RS. §§ 1°
451 to 13-453.
46. Criminal Law © 339.6
Despite contention that fingerprint evi-
dence was inadmiasible for lack of foundc-
tion, trial court properly admitted finger-
print evidence presented in testimony of
LD. technician.
47. Criminal Law @*42%(1)
Witness’ testimony that codefendent
stated to him that car in which they were
riding was stolen was admianible in defend-
ant's trial as extrajudicial comment of co
conspirator made in course and furtherance
of conspiracy.
48. Homicide ©» 162
Kidnapping 5
Testimony of manager of condominiur
complex in which murder vietims lived we:
admissible as probative of several links |
chain of events leading from kidnapping to
murder
49. Criminal Law = 1130(2)
Allegedly erroneous evidentiary rulings
of trial court, listed in defendant's brie:,
presented no fundamental error. 17 ARS
Rules of Criminal Procedure, Rule 31.13,
subd. {1 Miv).
%. Criminal Law © 1169.1(5)
Evidence that defendant was arrested
by California police and was held in Califor-
nia on Arizona indictments did not preju-
dice him since the fact that he was arrested
by somebody prior to trial was obvious to
jury. :
51. Witnesses = 337(2) i.
Where defendant did not choose to
raise his character as an issue and face the
risk inherent in that choice, it was not error
for trial court to preclude cross-examination
on that issue.
52. Witnesses @= 268(1)
Trial court did not abuse its discretion
in refusing to allow defense to cross-exam-
ine witness concerning either polygraph ex-
amination he took when police investigaicd
his kidnapping or his reasons for leaving job
STATE v. GRETZLER
Ariz. 1027
Chee wa, Arta 612 P26 1023
with police department since neither poly-
graph nor job record contained any evi-
dence relevant to defendant's guilt or inno-
cence.
53. Criminal Law @ 595
Trial court did not err in refusing de-
fendant’s motion to continue after jury was
empaneled so that defense could obtain ad-
ditional ballistics or fingerprint evidence
where it was not shown how such evidence
would have benefited case.
M4. Witnesses @» 297(13)
Fifth Amendment privilege is available
to a convicted person when his conviction or
sentence is being appealed. USCA Const
Amend. 5.
55. Witnesses @» 297(13)
Codefendant was entitled to claim his
Fifth Amendment rights in defendant's tri-
c! where codefendant had appealed both his
conviction and his sentence and they had
not beer finally disposed of at time of de-
fendant’s trial USCA Const. Amend. 5
& Criminal Law @ 1170(1)
Although trial «ourt erred in preclud-
ing codefendant from appearing before jury
even though it was apparent that he would
claim Fifth Amendment privilege and not
testify, such error was harmless beyond rea-
sonable doubt in view of overwhelming evi-
dence. US.C_A.Const. Amends 5, 6
57. Homicide @ 150
Allocation to defense of burden of per-
suasion as to drug intoxication defense in
homicide prosecution was not impermissible
where State presented evidence to prove
beyond reasonable doubt every element of
first«legree murder, including malice afore-
tought, and State was granted no pre-
.umption as to any element of first-degree
raurder. A.RS. § 13-451 (Repealed).
So. Criminal Law @*753.2(4)
In view of substantial evidence that
defendant committed crimes with which he
wes charged, trial court did not err in deny-
ing defendant's motion for acquittal.
59. Criminal Law @82%1)
If substance of proposed instructions is
adequately covered by instructions actually
given by court, there is no error in their
being refused.
60. Criminal Law @*757(5)
Jury instruction that testimony of al-
legedly biased witness should always be
considered with caution and weighed with
great care constitutes an improper com-
ment on evidence. A.RS.Const. Art. 6,
§ 27.
61. Criminal Law 830
Requested instruction on felony-mur-
der rule was properly refused in that it
improperly referred to time of death of
victim.
62. Criminal Law @= 774, 7892)
Court's reasonable doubt instruction
and those covering voluntary intoxication
and its effect on intent element on various
crimes with which defendant was charged
were not improper
63. Costs @ 3024
Since defendant had been examined by
two doctors to determine his competence to
stand trial and whether he was M'Naghten
sane, trial court did not err in refusing to
grant further examinations at state ex-
pense ARS § 13-1673, subd. B (Re-
pealed), 17 ARS. Rules of Criminal Proce-
dure, Rule 11.3, subd. f
64. Criminal Law @ 1077.2(1)
Allegation that trial court erred in de-
nying some of defendant's requests for
transcripts at state expense could not be
sustained since voluminous transcripts were
provided defendant and he failed to show
that he was denied transcripts reasonably
necessary to help defense
65. Costs = 302.1(5)
Trial court did not err in denying de-
fendant's request for daily transcripts.
66. Judges @4%1)
Trial judge was not required to disqual-
ify himself from sentencing on ground that
he was allegedly biased against defense by
publicity utilized by prosecutor in his cam-
——
-
~~
i
- |
1028 Ariz.
paign for county attorney/involved or that
he himself in preparing such publicity.
67. District and Prosecuting Attorneys
es
Prosecutor's office did not improperly
use defendant's trial to generate publicity
for prosecutor who was running for county
attorney.
68. Homicide 354
In view of murder spree which resulted
in defendant's conviction, prosecutor's deci-
sion to seek death penalty was not an abuse
of discretion.
69. Homicide @* 354
Fact that prosecutor has discretion in
charging and deciding whether to ask for
death penalty does not render imposition of
capital sentences unconstitutionally arbi-
trary.
70. Criminal Law @» 1182
Defendant, who had been sentenced to
death, was entitled to resentencing based
on challenge to constitutionality of Arizona
death penalty statute. ARS §§ 13-451 to
13-454 (Repealed).
Robert K. Corbin, Atty. Gen. by William
J. Schafer III and Crane McClennen, Asst.
Attys. Gen., Phoenix, for appellee.
Hoffman & Brown, P. C. by David 5.
Hoffman, Tucson, for appellant.
CA SRON, Justice.
Defendant, Douglas Gretzler, was
charged in two indictments by « Pima
County grand jury with one count of bur-
giary, ARS. § 13-802; one count of kid-
napping for robbery with a gun, ARS.
$4 13-491, -492, two counts of robbery
with a gun, ARS. §§ 13-641, -44%(B), and
two counts of first degree murder, ARS.
§§ 13-451, -452, -453.' After jury verdicts
and judgments of guilt, Gretzier was sen-
tenced as follows: death for the crime of
first degree murder, two counts; not less
than twenty-five years nor more than fifty
1. Except where otherwise noted, Tithe 13 cita-
tions in this opinion are to the Arizona Crimi-
612 PACIFIC REPORTER, 24 SERIES
years each for the crimes of robbery, bvr-
glary and kidnapping, to run concurrently.
Notice of appeal to this court was filed by
the Clerk of the Pima County Superur
Court pursuant to Rule 26.15 of the Arizona
Rules of Criminal Procedure, 17 ARS.
The defendant raises some fifty-four
questions on appeal. For purposes of ccn-
venience, we have grouped these questions
under the following headings:
Challenges to the Grand Jury.
Extradition and Speedy Trial.
Consolidation and Severance.
Defendant's Competence to Stona
Trial.
5. Objections to Identification Witness-
«.
6. Alleged Failure of the State to Me'c
Full Disclosure to the Defense.
7. Claims Concerning the Jury.
& Admissibility of Defendant's Con! »s-
sions.
9. Objections to Evidentiary Ruling».
10. Challenges to Miscellaneous Kulings
Made During Trial. ?
11. Objections to Rulings Involving the
Expenditure of Public Funds for the
Defense.
12 Alleged Misconduct of Trial Judge
and Prosecutor's Office.
13. Constitutionality of the Death Pen-
alty.
The acts on which the instant prosecution
ene
In late December of 1972, Gretzler aban-
doned his wife and infant daughter in New
nal Code as it existed prior to its extensive
revision effective | October 1978.
ae
ee
STATE v. GRETZLER
Ariz. 1029
Cite os, Arta, 612 F 26 1073
York City, leaving no word of his intentions
or whereabouts. He drove to Casper, Wyo-
ming, and then to Denver, Colorado, where
he met and moved in with Willie Steelman
and Stee!man’s sister. At this point, Gretz-
ler's criminal record consisted of minor traf-
fic charges and one count of vagrancy
On 11 October 1973, Gretzler, Steelman
and a woman friend left Denver for Phoe-
rix, Arizona. In Globe, Arizona, the two
men committed an armed robbery of a sun-
bathing couple; the robbery netted them
five dollars. Later on the same day, they
picked up a hitchhiker, tied him to a tree
and stole his clothes, a ring and twenty
dollara On 15 October, the trio arrived in
Phoenix where they pawned the ring and
robbed a woman of twenty dollars and some
cheeks
Shortly after the trio's arrival in Phoenix,
the woman set forth on her own. Steelman
and an Arizona acquaintance known as
“Preacher” went out to settle a drug-relat-
ed dispute involving Preacher's brother
Poth Preacher and his brother died in the
-esulting melee
Through two young men, Ken Unrein and
Mike Adshade, Gretzler and Steelman
learncd that acquaintances of Steelman
named Bob Robbins and Yafah Hacohen
were living at an area trailer park. All
four visited the couple. Pollowing the visit,
Gretzler and Steelman kidnapped Unrein
and Adshade in their Volkswagen van and
drove to Starisiaus County, California,
where, on 17 October 1973, the pair garrot-
ed and stabbed Unrein and Adshade to
death They hid the bodies and continued
to drive the Volkswagen until it stopped
running, at which point they began to
hitchhike. On 20 October, they kidnapped a
young couple who stopped for them near
Petaluma, California. Steelman raped the
woman captive, but eventually both victims
were released at an underground garage,
where Gretzler and Steelman stole another
cr.
Concerned that Bob Robbins and Yafah
Hacohen would eventually connect them
wath the disappearance of Unrein and Ad-
th-ce, Gretzler and Steelman decided to
return to Arizona and silence the couple.
On the way to Phoenix, they picked up a
hitchhiker named Steve Loughren. The
three stayed overnight with Robbins and
Hacohen; the following evening, Gretzler
and Steelman muidered Loughren in an
isolated area near the Superstition Moun-
tains. They then returned to their friends’
trailer. On 25 October, while Hacohen was
at work, they garroted and shot Robbins to
death and hid his body When Hacohen
returned home, she, too, was murdered
Gretzler and Steelman then moved on to
Tucson where they shared a “crash pad”
with some local street people. On 2 No-
vember, while hitchhiking with some of
their Tucson a quaintances, they were
picked up by Gilbert Sierra, whom they
murdered later that night. They drove the
victim's car to a parking lot, where they
wiped their fingerprints off the vehicle and
abandoned it
On 3 November, Gretzier and Steelman
kidnapped Vincent Armstrong who stopped
for them while they were again hitchhiking
Armstrong escaped from his moving car
and notified police of his abduction and the
theft of his vehicle. His captors drove his
Pontiac Firebird to a Tucson condominium
complex, where Michael Sandberg was
washing his white Datsun in the parking
lot. They parked the Firebird in an incon-
spicuous corner of the lot and forced Sand-
berg to take them to his condominium
where his wife Patricia was studying
While in the Sandbergs’ home, Gretzler
dyed his blond hair to brown. Both he and
Steelman changed from jeans to slacks and
coats belonging to Michael Sandberg. They
bound and gagged both hostages, Michael
on his bed and Patricia on the living-room
couch. When night fell, Gretzler shot Mi-
took the gun and fired one more shot into
her body, to make certain she was dead
The two then wiped down the condominium
in an attempt to eliminate their finger-
prints, gathered together credit cards,
checks, a camera and other items belonging
1030 Aris
to the Sandbergs, and drove away in the
couple's car
They went to the place where they had
arranged to meet acquaintances with whom
they planned to drive to California. The
only person at the meeting-place was Don-
ald Scott, and the three set off together
Scott knew that he was riding in @ stolen
car, and he testified that he saw Steelman
pay for motel rooms and automobile service
with Michael Sandberg’s American Express
Card However, Scott apparently was un-
aware of his companions’ other crimes’ He
had been told by them that he was free to
leave them if things became “too much” for
him. Scott did leave when Gretzler and
Steelman stopped for gas in Pine Valley,
California. The two continued to Lodi, Cal-
ifornia, where they entered the home of the
Walter Parkin family and took as hostages
all present, as well as others who arrived
later. Gretzler and Steelman forced Parkin
to open the safe in his nearby store and
stole between $3,000 and §4,000, of which
Gretzler’s share was about half After-
wards, Gretzler shot to death seven adults,
whom he had previously bound and gagged
He went to a bedroom where Steelman had
pulled « blanket over the heads of two
sleeping children, shot one of them to death
and waited while Steelman shot the second
On 8 November 1973, California police
arrested Gretzler and Steelman as suspects
in the Parkin homicides. In addition the
two were named in Arizona warrants for
crimes committed in Maricope County
Gretzler was incarcerated in Stockton, Cali-
fornia, the county seat of San Joaquin
County, where the Parkin crimes were com-
mitted He was appointed « lawyer,
George Dedekem. On 9 November, Califor-
nia and Arizona authorities began intensive
Questioning of both suspects
It was only after Gretaler and Steelman
were arrested that the Sandberg murders
were discoveret. California authorities no-
tified Pima County that the two had been
driving a car registered to Michael Sand-
612 PACIFIC REPORTER, 24 SERIES
berg Tucson police then went to the Sand.
berg home, where they found the couple's
bodies and lifted fingerprints later deter-
mined to be those of Gretzler and Steelman
While in custody in California, Gretzler con-
fessed to the murders of Michael and Patri-
cia Sandberg
On 6 June 1974, Gretzler pleaded guilty
to nine counts of first degree murder for
the nine California killings. A month later,
judgment was pronounced in accordance
with his plea, and he was sentenced to nine
concurrent life sentences. Arrest warrants
pursuant to Pima County indictments based
on the Armstrong and Sandberg crimes
were served on 17 September 1974. Gretz-
ler was booked into Pima County Jail on 18
September 1974 and he was arraigned on 25
September 1974 Various trial dates were
set and continued, and Gretaler was finally
brought to trial on 14 October 1975"
The jury found Gretsier guilty of al!
charges After an aggravation-mitigation
hearing pursuant to ARS § 13-454, the
court, on 15 November 1976, sentenced
Gretler to death for each of the two mur-
ders Gretaler appeals
CHALLENGES TO THE GRAND JURY
On 16 November 1973, @ Pima County
grand jury heard evidence concerning the
crimes at issue here The jury unanimously
voted true bills resulting in indictments
against Gretzler and Steelman for burglary.
robbery, kidnapping for robbery with e gun.
robbery with « gun, and two counts of first
degree murder Defendant claims that the
trial court erred in denying several motions
to dismiss these grand jury indictments
. May ® prosecutor who observes part of
the police investigation in a case con
duct grand jury proceedings concerning
that case’
William Stevens, the prosecutor who
presented the State's evidence to the grand
jury, was present for about an hour while
2. Neuh-+ Gretster nor Steetman has ever been prosecuted for any crime committed in Marco
pec
STATE v. GRETZLER
Aru
31
Che oe, Arte, 612 P26 1023
police conducted their investigation of the
Sandbergs' condominium Stevens did not
direct that investigation, and he did not
touch, take, or mark any evidence. Stevens
did not testify before the grand jury or at
trial Greuler contends that Stevens as a
witness, should not have prosecuted « case
before the grand jury and that his doing so
offends due process We do not agree
Our Court of Appeals has held that «
prosecutor who was present when « drug
raid was made on the home of the defend-
ant could properly conduct the grand jury
hearing in the case
“While he could not testify as a witness
and then act as the prosecutor at the
grand jury proceedings, the mere fact
that the prosecutor witnessed some of the
events does not disqualify him from act-
ing as @ prosecutor as long as he limits
himself to that role only” State v
Steele, 23 Ariz. App. 73, 77, 630 P.2d 919,
923 (1975)
{1} In the instant case, the prosecutor
was merely present while others were ob-
taining evidence. Where a prosecutor lim-
its himself to only one role, his having ob
served part of the police investigation will
not disqualify him from appearing before
the grand jury in the role of @ prosecutor
Steele, supra. We find no error
b May prosecutors who are not presenting
evidence attend grand jury proceed-
ings’
Gretuler also contends that it was a viole-
tion of due process and Rule 125, Arizona
Rules of Crimina! Procedure, 17 A.R.S., for
three Pima County prosecutors who did not
actually present evidence to be present in
the grand jury room All three were autho
rized deputies of the Pima County Attor-
ney.
[2] Rule 125, supra, lists the persons
who may attend grand jury sessions:
“No person other than the witness under
examination, counsel for the witness if
the witness is a person under investige-
tion by the grand jury, prosecutors autho-
rized to present evidence to the grand
jury, the reporter, and the interpre .cr, if
any, shall be present during sessions of
the grand jury. . . ad
Rule 125 uses the plural form of “prosecu-
tors,” as opposed to the singular “witness
under examination,” “interpreter,” and “re-
porter.” We believe that the rule itself
contemplates that more than one prosecutor
may be present. This is in conformity with
the genera! rule that
“[t}he right of the prosecuting attorney
to appear and assist in the grand jury
investigation usually embraces assistants,
deputies, and special assistants duly au-
thorized to assist the prosecuting attor-
ney in the performance of his duties” 38
Am Jur 2d, Grand Jury, § 35 01 980. See
Commonwealth v. Favulli, 852 Mass. 95,
224 N F.2d 422 (1967), Franklin v. State,
89 Nev. 3&2, 513 P.2d 1252 (1973), Berard
v. Moeykens, 182 Vt. 597, 326 A2d 1%
(1974)
We find no error
c. Was the grand jury tainted by pretria!
publicity?
Gretzler also contends that the grand
jury members were prejudiced by news me-
dia accounts of the Gretzler-Steelman cases
[3.4] The ultimate question in cases
where it is alleged that a grand jury is
tainted is whether each “juror can base his
decision solely on the evidence presented to
him and the law.” State v. Salazar, 77
Ariz. App 620, 624, 557 P.2d 552, 556 (1976)
The record indicates that the jurors were
instructed as to the need for impartiality
Just prior to presenting the Sandberg case,
Stevens admonished the jurors at length
that they must excuse themselves if they
could not decide the case solely on the evi-
dence and without considering anything
they might have learned from the news
media. All the jurors agreed that they
would confine their deliberations to the
facts before them. There is no evidence
before this court to indicate that any of the
grand jurors based their decisions on evi-
dence other than the evidence presented
We find no error.
1032 Arse
4. Were the indictments defective’
On 21 March 1975, Gretzler moved that
the murder indictment should be dismissed
because the grand jury was not informed
that the State intended to seek @ death
penalty. At the hearng on these motions,
Gretuler also argued that the indictment
was vague and ambiguous
Rule 12%b), Anzona Rules of Criminal!
Procedure, 17 ARS, in effect at the time,
provided that any challenge to the grand
jury proceedings must be made within ten
days after the grand jury transcript and
minutes were filed The present rule re-
quires that the challenge be made within
twenty-five days Rule 12%b), Anzons
Rules of Criminal Procedure, 17 ARS, as
amended 7 May 1975 The transcripts and
minutes in the instant case were filed on 17
November 1973, and the motion to dismiss
the indictment was not raised until six
months after the filing
(5S) The trial judge denied the defend-
ant’s motion because it was untimely, State
v. Lopes, ZT Ariz App 6, 555 P2d 667
(1976), and because he found the indictment
adequate under Arizona law Since the
challenge to the grand jury was not timely,
we need go no further We find no error
EXTRADITION AND SPEEDY TRIAL
The right to speedy trial is guaranteed to
a criminal defendant It is, however, fun-
damentally distinct from the other rights
essential to a fair criminal trial, in that
there “is & societs! interest in providing
speedy trial which exists separate from, and
at times in opposition to, the interests of
the accused” Barker vy. Wingo, 07 US
614, 92 SCu 2182, 33 L.Ed 2d 101 (1972)
Society i» concerned that crimina! defend-
ants be tried expeditiously so that danger-
ous offenders will be quickly restrained
from further depredations Convictions
will be more reliable if based on fresh and
accurate evidence, and punishments wil! be
more effective if they closely follow -ulpe-
612 PACIFIC PEPORTER, 24 SERIES
ble acts. State ex rel. Berger v. Superior
Court, 111 Ariz. 335, 529 P.2d 686 (1974)
While an innocent defendant will probably
share society's concern for speedy trial, a
guilty one is “usually content to allow the
trial date to be continued until such time as
the witnesses have ° ° ° disappeared,
the passions of the victims have cooled, and
the zeal of the prosecutor has been damp-
ened.” Berger, supra, 111 Ariz. at 339, 529
P.2d at 690
Gretaler contends that Arizona's speedy
trial provision as set forth in Rule 8 of the
Arizone Rules of Criminal Procedure, 17
ARS? was violated, as well as his federal
constitutional right to « speedy trial
a Was extradition faulty because of al-
leged constitutional defects in Rule 83
of the Arizona Rules of Criminal! Proce-
dure, 17 ARS”
On 19 November 1973, Detective Larry
Hust of the Tucson Police Department trav-
eled to California where he filed warrants
hased on the 16 November indictments
against Gretzler with the San Joaquin Sher-
iff's Department. He personally apprised
Gretzler of the Pima County charges pend:
ing against him “I ° ° ° showed him
the charges left with the San Joaquin Coun-
ty Jail as @ hold placed ageinst him.”
Gretzier was convicted in California and
sentenced on 8 July 1974 He was then
extradited by Arizona and taken into custo
dy by Arizona authorities on 17 September
1974
(6) Rule 8X%a) and (b), supra, provides
for notice of detainer to persons held in the
state, but not to persons held without the
state According to Gretsler, Rule 8.3 vic-
lates equal protection principles guaranteed
by the Constitution of the United States
because it provides in-state prisoners with
notice of detainers filed against them, while
out-of-state prisoners are given no such no-
tice. Rule 830), supra, however, must be
read in light of the Interstate Agreement
oa Detainers to which both California and
a Crauions to various portions of Rule 8 are as the rule existed prior to amendments of 7 May
1975, effective | August 1973
STATE v. GRETZLER Ar. 1033
Cree on, Arte, 012 P36 1023
Arizone are signatories ARS § 81-48)
(Title 31, Ch 8, Article 6, Agreement on
Detainers); West's Ann Cal Pen Code
§ 1389 ARS § 81-481, Art Ike) reads
as follows
“The warden, commissioner of correc-
tions, or other official having custody of
the prisoner shal! promptly inform him of
the source and contents of any detainer
lodged against bim and shal! also inform
him of his right to make « request for
fina! disposition of the indictment, infor-
mation or complaint on which the detain-
er is based ~
Gretaler does not suggest that the above
procedure was not, in fact, followed in his
case. In addition, as we have noted, Detec-
tive Hust testified that he personally not-
fied the defendant of the charges on which
the instant prosecution was based within
three days of the return of the indictments
by « Pima County grand jury We find no
error
b. Was tie time limit from arraignment
trial violated’
Gretsler submits that the tria! court erred
in denying his motions to dismiss for viola-
tion of Arizona's Rule 8.2/0) and 8.21b), An-
gona Rules of Criminal Procedure, 17 ARS
Rule &.2(8) provides that « defendant must
be tried within 150 days from issuance of
the warrant, and Rule €2(b) provides the
defendant must be tried within ninety days
from his initial appearance or sixty days
from arraignment, whichever is the lesser
Gretaler's reliance upon Rule 82 is mis-
placed. Since Gretzler was being held by
California authorities, Rule 63a) Arizona
Rules of Criminal Procedure, 17 A.RS., not
Rule 82, applies Rule 8.2) provides that
& person must be brought to trial within
ninety days from the date he has been
delivered into the custody of the appropri-
ate authorities of this State. In computing
this time, excluded periods are allowed by
Rule 84 and 85 Arizona Rules of Criminal
Procedure, 17 ARS Gretzler was taken
into custody by Pima County suthorities on
17 September 1974. If there were no ex-
cluded periods or valid continuances, 16 De-
eember 1974 would have been the ninetieth
day.
On 21 November 1974, the defens« filed a
motion under Rule 11, Arizona Rules of
Criminal Procedure, 17 ARS. The result-
ing examinations and hearings as to Grew
ler's competency for trial lasted until 1)
February 1975, when he was found compe-
tent by the court. The delay from 22 No
vember until 11 February is excluded time
under Rule 84a), since “filing of the mo
tion under Rule 11 effectively stops or sus-
pends the trial of the defendant until his
mental competency is established” State
vy. Landrum, 112 Aria 555, 560, 644 P.2d
664, 669 (1976) See also State v. Ceja, 113
Ariz. 99, 546 P.2d 6 (1976), Berger v. Rosar,
112 Ariz. 62, 837 P.2d 932 (1975)
On 11 February 1975, Gretzler moved for
suppression of al! statements made by him
On 18 February, the court reset trial for 18
March 1975, to allow for the resolution of
this motion On 14 March, Gretzler filed «
motion for change of venue and a hearing
under State v. Dessureault, 104 Ariz 380,
453 P.2d 95) (1969), cert. denied 397 US
965, 9 SCt 1000, 2 LEd 2d 257 (1970)
The court set the venue hearing for 2)
March, took the motion to suppress under
advisement, and set the Dessureault hear-
ing for not less than two days prior to trial
Because these matters could not be resolved
prior to 18 March, that trial date was vacat-
ed and the matter continued subject to cal!
Defense counse! stated that it “was not
possible” to have his motions “heard prior
to the 18th,” but he indicated that he was
not surrendering his right to object to any
speedy tria) violation.
On 9 June, the trial court granted the
motion for the change of venue On 10
June, the State moved that « trial date be
set within two weeks Defense counsel op
posed the motion, arguing he had further
preparation to do, and requested a Septem-
ber trial date. On 16 July 1975, the trial
court denied defendant's motion to suppress
and set trial for 2 September.
Trial did not commence on 2 September
because the defense filed fourteen motions
just prior to that date. One motion was for
1034 Aris
certain transcripts; the trial court granted
the motion and continued the trial to 2
September to allow the transcripts to be
the other defense motions to be
resolved, and a Dessureault hearing to be
had. The defense at this point was stil!
emphasizing its need for more time. The
State again indicated it was ready for tna!
and protested the continuance For vanous
reasons, primarily because requested tran-
scripts could not be available to the defense
until 22 September, a week before the 29
September tria! date, the defense asked for
one more continuance. Trial was then set
for 14 October 1975, and jury selection be-
gan on that day
Our rule reads
“The following periods shal! be excluded
from the computation of the time limits
set forth in Rules 82 and 83
a Delays occasioned by or on behalf
of the defendant, including, but not
limited to, delays caused by an exami-
mation and hearing to determine com-
petency, the defendant's absence or in-
competence, or his inability to be ar-
rested or taken into custody in Arizo
na” Rule 8 Ma), supra
(7,8) Though he urged the continuances
that were granted, Gretzler now protests
that the continuances were improper A
defendant may not obtain a continuance
and then assert, on appeal, failure to com-
ply with the rule as ground for retrial See
State v. Stoneman, 115 Ariz. 594, 566 P.2d
1340 (1977), State v. Barnett, 112 Ariz. 210,
540 P.2d 682 (1975), State v. Armenta, 25
Ariz App. 62, 540 P.2d 1281 (1975) The
continvances herein were obtained by
Gretzler as @ result of the motions he was
entitled in law to make and were “on behalf
of the defendant” Rule 84s), supra. We
find no Rule 8 speed, trial! violation.
We must comment, however, on the delay
in bringing this matter to trial. We do not
criticize the prosecutor who continuously
urged for an early trial. We do feel, how-
ever, that the court was lax in not insisting
that the defendant, as well as the State,
prepare for trial expeditiously. Admitted-
ly, some delay was necessary because of the
612 PACIFIC REPORTER, 24 SERIES
complex nature of the case, but a review of
the record leads us to believe that the trial
court did not adequately protect society's
interest in @ prompt determination of the
accused's guilt or innocence
c Was the statutory limit of 150 days
from issuance of a warrant to trial vio-
lated”
Defendant contends that, pursuant to
Rule 8.2(a), Arizona Rule of Criminal) Proce-
dure, 17 ARS, every accused must be tried
“within 180 days of the issuance of the
warrant.” The indictments on which the
instant prosecution is based were issued on
16 November 1973 Three days later, De-
tective Larry Hust left warrants resulting
from these indictments “with San Joaquin
County Jail as a hold placed against Gretz-
ler.” Hust personally informed Gretzler of
the Pima County charges Gretzler was not
tried until October of 1975
(9) As noted above, Rule 82a), which
requires a trial within 150 days of the is-
suance of the warrant, does not apply to
defendants being held without the State
when the warrant is issued Rule 8 Xa),
Arizona Rules of Criminal Procedure, 17
ARS. We find no violation of Rule 82a)
{10} It is contented, however, and we
agree, that incarceration in another juris-
diction does not abrogate the State's duty
to seek an early determination of the
charges against the defendant. Our rules
provide that within
“90 days after receipt of a written re-
quest from any person charged with a
crime and incarcerated without the state,
or within @ reasonable time after other-
wise learning of such person's incarcera-
tion without the state, the prosecutor
shall take action as required by law to
obtain such person's presence for trial.”
Procedure, 17 A.RS.
[i1} In November of 1973, evidence was
presented to the Pima County grand jury
which indicated Gretzler and the California
——,
STATE v. GRETZLER Ai~ JUSS
Chee as, Arta, 6) P20 1009
contain any evidence that Gretzler at any
time requested @ transfer to Arizona for
tris). Neither does the record indicate that
Arizona wis less than diligent in obtaining
custody of Gretzler for trial The delay
complained of resulted from California's ex-
ercising its right to try and convict Gretzler
before releasing him to Arizona The Ari-
none authorities did not procrastinate Ax
soon as it became possible to obtain custody
of Gretaler, the Arizona authorities moved
to bring him to Arizona for trial The time
Gretaler was in California was excluded
from computation of speedy trial limits he-
cause the delay was caused by the defend-
ant’s “inability to be arrested or taken into
custody in Arizone™ Rule 88), Arzone
Rules of Criminal Procedure, 17 ARS We
find no error
d Was the defendant denied his federal
constitutional right to a speedy trial’
On appeal, the defendant asserts that he
was severely prejudiced by violation of his
federal constitutional right to speedy trial
Klopfer v. North Carolina, 386 US. 213, 87
S.Ct 988, 18 L.Ed2d 1 (1967).
Barker v. Wingo, supra, sets forth the
factors that must be weighed in determin-
ing whether federal speedy tria! rights have
been violated (1) length of delay, (2) rea-
sons for delay, (3) defendant's assertion of
his right, and (4) prejudice cause to the
defendant. See State v. Soto, 117 Ariz M45,
$72 P.2d 1183 (1977)
Of al) these factors, the length of delay
weighs least in the balance. Barker v. Win-
go, supra It serves primarily to tngger
analysis, State v. Wright, 113 Ariz 813,
553 P.2d 667 (1976). As our discussion of
our speedy trial rules indicates, the reasons
for the delay were the voluminous defense
motions and the unavailability of Gretzler
due to his California charges. As in Barker
v. Wingo, supra, the record here “strongly
suggests that while he hoped to take advan-
tage of the delay * * * anid thereby
obtain « dismissal of the charges, [the de-
fendant) definitely did not want to be
tried.” 407 U.S. at 535, 92 S.Ct at 2194, 33
LE42d at 119. Two weeks before trial,
Gretaler was otil) seeking continuances
while the prosecution was urging that «
trie) date be eet There was no genuine
demand that tria! begin
Gretaler contends, however, that he was
prejudiced by the delay, in that psychia-
triste who examined him in Arizona could
not establish his state of mind at the time
of the Tucson crimes We do not find pre}.
udice in this regard. The California psy-
chologists who examined him within a short
time after the crimes were in substantial
agreement with those who examined him in
Aruona
Gretaler also claims that his California
counsel, George Dedekam, died before trial
and might have sided his Arizona defense
Mr Dedekam was available to the defense
for at least two months after Gretzler was
brought to Arizona. Arizona counse! was
granted funds to be used to go to California
to talk with Dedekam, and he spent those
funds
(12) Finally, Gretzler argues that a wit-
ness, Michae! Marsh, became unavailable
through passage of time Again, defense
counse! in fect talked with his witness be-
fore he dropped out of sight Counsel made
no effort Ww record his testimony in any way
and made no showing of how testimony
Marsh would have given at trial would have
aided the defense. The mere assertion that
& witness was not available at time of trial
“is insufficient to show that 8 denial of due
process has occurred” State v. Torres, 116
Aria. 377, 379, 569 P.2d 807, 809 (1977). See
also United States v. Lovasco, 431 U.S. 783,
97 S.Ct 2044, 52 L.Ed2d 752 (1977). We
find no federal speedy trial violation.
CONSOLIDATION AND SEVERANCE
When Gretzler and Steelman were re-
turned to Arizona for tris!, the Sandberg
murders and the Armstrong kidnapping
were filed as separate cases with Gretzler
and Steelman as co-defendants in each of
the two cases Steelman and the State
entered into an agreement to sever the trial
of Steelman from Gretzler and to consoli-
date the Sandberg and Armstrong cases.
1036 Ariz
Neither Gretzler nor his attorney partici-
pated in this agreement, and Gretzler op-
posed both the severance of the defendants
and the consolidation of the cases. The
court granted the motions to consolidate the
murder and kidnapping trials and to sever
the trial of Steelman and Gretzler
& Did the trial court abuse its discretion
in ordering that Gretzler and Steelman
should be tried separately”
{13} Rule 13.42) of the Arizona Rules of
Criminal Procedure, 17 ARS, states that
“the court may on its own initiative, and
shall on motion of a party,” order severance
when it “is necessary to promote « fair
determination of the guilt or innocence of
any defendant.” The rule does not suggest
that the co-defendant must agree to the
severance, and we do not think that such
agreement is required Also, it would ap
pear that consolidation would have been
prejudicial under Bruton v United States,
991 US 123, 68 S.Ct 1620, @ LEd 2d 476
(1968) Bruton held that admission ae
non-testifying codefendant's confersion
may violate a defendant's Sixth Amend-
ment right of confrontation Gretaler's
counsel stated to the trial court that, be
cause of the co-perpetrator’s voluminous
statements to the police, “there was wet
as large & Bruton problem as I have ever
geen in any case at any time” The court
followed Rule 13.4(a) and there was no pre)-
udice to Gretzler We find no error
b Did the trial court abuse its discretion
in consolidating the Armstrong and
Sandberg crimes for tra!’
[14] The defense also objected to the
tria! court's consolidating the Sandberg and
Armstrong cases. Our rules provide
“e Consolidation If such offenses or
such defendants are charged in separete
proceedings, they may be joined in whole
or in part by the court or upon motion of
either party, provided that the ends of
justice will not be defeated thereby.”
Rule 13.X%c), Arizona Rules of Criminal
Procedure, 17 ARS.
As we have stated
“The app- ‘ant must demonstrate « clear
abuse of Jcretion with respect to the
612 PACIFIC REPORTER, 24 SERIES
trial court's decision to join the offenses,
"based on the showing at the time the
motion is made and not what ultimately
transpires at the trial.” (citation omit-
ted)” State v. Dale, 113 Ariz. 212, 215, 550
P.2d 83, 86 (1976)
It is evident that the Armstrong and
Sandberg crimes were both part of Gretz-
ler's and Steelman’s continuing effort to
get out of Tucson without attracting police
attention following the murder of Gilbert
Sierra Having no car they kidnapped
Armstrong to get his Pontiac Firebird
Since Armstrong escaped them and could
give police desemptions of his captors and of
his stolen vehicle, they had to dispose of the
Pontiac immediately. They did so by park-
ing it inconspicuously 10 the lot of the Sand-
bergs’ condominium, where Michael Sand-
berg was washing his own car They forced
Sandberg into his home at gunpoint, and,
after changing their appearance, murdering
the Sandbergs and stealing their belong
ings, escaped Arizona in the couple's Dat-
son. It was the manager of the Sandvergy
condominium who first discovered Arm-
strong’s car and reported it to the police
{1S} The Armstrong and Sandberg
crimes were “connected gether in their
commission” and were s “part of & common
scheme or plan” The offenses would have
been properly joined pursuant to Rule 13-
MaX2) and (3), Arizona Rules of Criminal
Procedure, 17 ARS, and were proper!)
consolidated pursuant to Rule 13.X(c), supre
DEFENDANT'S COMPETENCE TO
STAND TRIAL
On 21 November 1974, defense counse!
filed & motion requesting examinations and
a bearing into Gretzler's competency to
stand trial, pursuant to Rule 11, Arizona
Rules of Criminal Procedure, 17 ARS. Rule
11.1 states
“A person shal! not be tried °
while, as & result of a mental illness or
defect, be ie unable to understand the
proceedings against him or to assist in his
own defense.”
STATE v. GRETZLER Ar
1037
Cre os, Arta. 612 726 1023
The court granted the motion and ap
pointed two psychiatrists to examine the
defendant. Dr. Alan Beigel, requested by
_ and Dr. David B Guriand, re
quested by the defense The Rule 11 hear-
ing wa held on 11 February 1975. At the
hearing, both experts testified that Gretzler
was suffering from no thought disorders
and that he had good recall of the events
which occurred in the autumn of 1978
They agreed that he was able to understand
the proceedings ageinst him and could aid
in his defense. Both psychiatrists rejected
defense counsel's suggestion that Gretler’s
recal! of the period at issue here was great-
ly damaged by amphetamines he was sup
to have taken at the me They
stated that, while there were some gape in
the defendant's memory, impairment was
at worst “moderate” We have stated that
examinations into competency to stand trial
focus
“on an extremely narrow iasue whether
whatever is afflicting the defendant bas
eo affected his present capacity that be
unable to appreciate the nature of the
proceedings or assist his counse! in
conducting his defense " State v. Steel-
man, 120 Aria. 301, 315, 585 P24 1213,
1227 (1978)
[16] In the instant cas, the experts
agreed that Gretzler was able to under-
stand the nature of the proceeding» against
him and to sid in his defense We find that
the trial court's decision that Gretuler was
competent to stand trial was supported by
the evidence
OBJECTIONS TO IDENTIFICATION
WITNESSES
a Donald Scott
{17} At the Dessureault hearing, Donald
Scott described himself as e “fellow street
person” with Gretaler and Steelman. He
knew them as “Doug” and “Bill” during the
time they lived in Tucson One night be
shared © “crash pad” with them, and he
spent two-and-e-half days with them in the
Sandbergs’ car en route to California
While he had been previously shown police
photographs of Gretzler, the trial court
ruled that his identification of Gretuler was
based on an independent recollection and
not on the police photographs The defense
did not object to this ruling We agree
with the trial court We find no error
b. Vincent Armstrong
Vincent Armstrong testified that he
stopped to pick up Gretzier and Steelman as
they were standing, at midday, by the side
of the road and that he spent about thirty
minutes with them before he escaped
Gretaler sat next to Armstrong, in the front
seat, while Steelman, in back, held e gun to
Armstrong's ribs When Armstrong
claimed to be too nervous to drive, he
stopped the ear so that Gretzler could get
out, walk around «.. front of the car and
take over the wheel
At the hearing. Armstrong testified that
between his kidnapping and that day, he
had seen Gretaler only once, when he hap
pened to be watching @ television news
story concerning the California murders
Recognizing his captors, he notified Tucson
Gretler and Steelman
i Prior to that
again saw the Gretzler composite. At no
time was Armstrong shown mug shots or &
police line-up
On the eve of the Dessuresult hearing,
Armstrong had the following exchange
with # Tucson policeman:
“ARMSTRONG: 1 just asked him—I
said, ‘I imagine—I imagine Gretzler looks
different now.” And be says, ‘He's been
deaned up.’”
1038 Ariz.
Immediately prior to the Dessureau!t hear-
ing, Armstrong caught sight of Gretzier
coming out of the courtroom after another
proceeding. At the Dessureault hearing,
Armstrong identified Gretzler, testifying
that the defendant's hair had been longer
and bionder at the time of the kidnapping
He also noted that Gretzler had not worn a
mustache at that time, though he wore one
at the hearing After Armstrong's testimo-
ny at the Dessureault hearing, the defense
moved that his identification of Gretzler be
precluded at trial because it was tainted by
the comment, “He's been cleaned up,” and
by Armstrong's glimpse of Gretzler just
before the Dessureault hearing The court
disagreed
(18) Our review of the evidence leads us
to concur with the trial court that Arm-
strong’s in-court identification of Gretzler
was based on his own experience and inde-
pendent recollection We find no error
State v. McGill, 119 Ariz 329, 580 P_2d 1183
(1978); State v. Ware, 113 Anz 340, 554
P2d 1267 (1976)
DISCLOSURE
The defendant contends that, in several
instances, the Pima County Attorney's Of-
fice and the trial court were “guilty of
withholding information which was valua-
ble and in some cases essential to the de-
fense of the matter”
Rule 15, Arizona Rules of Criminal! Proce-
dure, 17 ARS, governs discovery in crimi-
nal prosecutions. Section 15.1 of the rule
specifically sets forth the obligations of the
prosecutor to make disclosure to the de-
fendant. As noted in the commentary to
the rule, subsection 15.1(aX7) clarifies “the
prosecutor's constitutional obligations under
Brady v. State of Maryland, 373 US. 83, 8&3
S.Ct 1184, 10 L.Ed 2d 215 (1963) Brady
held that when the defense requests evi-
dence favorable to the accused, the prosecu-
tor must produce al! information in his pos-
session that is “material either to guilt or to
punishment.” 373 U.S. at 87, 6&3 S.CL at
1197, 10 L Ed.2d at 218 Arizona's Rule 15
reaches be, 1d Brady as to what must be
disclosed * alan renwieee the Grete tn
612 PACIFIC REPORTER, 24 SERIES
make disclosure regardless of whether there
is a defense request. For failure to comply
with Rule 15.1, the rules provide
“If at any time * ° ° ao party has
failed to comply with * ° ° this rule
or any order issued pursuant thereto, the
court may impose any sanction which it
finds just under the circumstances * ° .”
Rule 15.7, Arizona Rules of Criminal! Pro-
cedure, 17 ARS
a Background information on prospective
jurors
Prior to jury selection, the prosecutor and
the defense counsel stipulated that the pros-
ecutor would provide the defense with any
information he had concerning the thirty-
six individuals from which the ultimate jury
would be selected. No such information
was provided. Shortly before trial, the de-
fense made a motion that the State disclose
this material The prosecutor stated to the
court that, while he had requested a check
on the thi ty-six jurors, he had received no
information The prosecutor also stated he
had directed the State's investigator to
share his juror findings with the defense
The prosecutor participated in jury selec-
tion without any information from his in-
vestigator After jury selection, the prose-
cutor stated that upon checking with the
investigator, he found that «a “background
check” had been done on the thirty-six jur-
ors but that there was nothing returned one
way or the other. The investigator gave
him no report, and he had nothing to pass
on to the defense.
{19} We might rule differently if the
prosecutor was using this procedure in or-
der to withhold from the defense useful
information possessed by the State's inves-
tigator. Our reading of the record leads us
to conclude, as did the tria! court, that there
was no information to be passed on to the
defense. We find no error
b. Did the prosecutor or court deny the
defendant other Rule 15 or Brady infor-
mation”
In addition to the juror background infor-
amet. «= Me «-*
—
lr or et Ogre
STATE v. GRETZLER
Ariz, 1039
Cite as, Artz, 612 P26 1023
certain other materials and “valuable infor-
mation” were withheld by the State and
trial court.
We have reviewed the portions of the
record designated in support of this conten-
tion and in almost every instance the record
to which he refers indicates that the re-
quested information was delivered. For ex-
ample, Gretzler alleges that the prosecutor
refused to disclose the addresses of poten-
tial witnesses Marsh, McPeak, and Scott.
The record reveals that the prosecutor
agreed from the first to share this informa-
tion when his office had the addresses and
that he in fact did so. The defendant alleg-
es that he was denied information from
Pinal County, Arizona, police reports and
from Stanislaus County, California, police
reports. The record shows that the prose-
cution disclosed all Gretzler- Steelman police
reports in its possession, as well as reports it
obtained on defense request. The Pinal and
Stanislaus County reports were delivered to
the defense on 28 March 1975
Gretzler also alleges that there was not
adequate disclosure of the testimony of wit-
nesses in the Steelman trial. The record
shows that the prosecutor provided the de-
fense with transcripts of all State witnesses
in the Steelman trial and agreed additional-
ly to transcribe ary material the prosecu-
tion believed to be required by Brady, su-
pra. At all times, the entire Steelman trial
record was available for the defense.
(20) Gretaler further alleges that the
State withheld its responses to motions
made by co-defendant Steelman. These re-
were deemed by the trial court,
under ite Rule 15.1(e) discretion, to be nec-
easary to the Gretzler defense. The record
shows that some of this material failed to
reach the defense promptly, through no
fault of the State. Gretsler received the
material in time to use it for his defense.
We find no error.
with retaliation by the Smaldones if he did
not commit the crimes in question. Gretz-
ler also suggests that prior to sentencing
the State had proof that the Smaldone fam-
ily did, in fact, exist. The record before
this court does not substantiate these alle-
gations. We find no error.
CLAIMS CONCERNING THE JURY
a. lxcessive publicity
Both Steelman and Gretzler filed a mo-
tion for change of venue based upon preju-
dicial pretrial publicity which the court
granted. In order to protect the new ven-
ues from undue publicity, they were kept
secret from all but the parties and court
officials until trial began. Steelman was
tried first, in St. Johns, Apache County
Gretaler wae tried in Prescott, Yavapai
County
The distance between Tucson, the county
seat of Pima County, and Prescott, the
county seat of Yavapai County, is 212 miles.
More importantly, the two counties are
served by different metropolitan daily
newspapers. Over a year had elapsed be-
tween the first Pima County newspaper
stories of the crimes and the beginning of
trial in Prescott on 14 October 1975. Prior
to trial, one hundred prospective jurors
were asked to fill out extensive question-
naires which both the State and defense
helped to write. The trial judge then orally
questioned each of these persons at length,
supplementing his own questions with those
suggested by the attorneys. Occasionally,
the attorneys themselves asked questions.
The original group of one hundred was nar-
rowed to « panel of thirty-six, from which
sixteen trial jurors were ultimately chosen.
No one on the thirty-six member panel
indicated a knowledge of the instant case.
No one knew that Steelman’s trial had oc-
curred. One person, not an ultimate juror,
overheard in « coffee shop that Gretzler
had been given a life sentence in California.
Four panel members knew that he had been
extradited from California for the present
trial. Two individuals recalled Steelman's
name, but knew nothing about him; and
1040 Aris
one knew that he had been accused of mur-
der, but not that he had been tried
(21,22) It would appear that this panel
had substantially less knowledge of the case
and the defendant than is required for a
finding of jury taint. Neither prior knowl.
edge of the case nor an opinion concerning
the defendant's guilt will disqualify a juror
unless there is evidence that is he unable to
set aside such knowledge or opinion in eval-
wating the evidence presented at trial
Murphy v. Florida, 421 US. 734, 9 S.Ct
2031, 44 L.Ed 2d 589 (1975), State v. Smith,
116 Ariz 387, 569 P.2d 817 (1977), State v
Endreson, 109 Ariz. 117, 506 P.2d 248 (1973)
(half of trial jury had knowledge of the
case); State v. Schmid, 109 Ariz. M9, 509
P 2d 619 (1973) (all jurors had knowledge of
the case) We find no error
b. Was the jury pane! unconstitutionally
selected”
On 22 October 1975, Gretzler moved to
quash both the pane! of one hundred jurors
provided by Yavapai County and the pane!
of thirty-six narrowed from the origina!
group through voir dire, as being unrepre-
sentative of the community from which
they were drawn.
The statistical information submitted by
Gretzler indicates that Yavapai County had
an estimated population of 50,700 in 1976
The figures show that 87% of the total
population is “Anglo-American,” while the
remainder is “Spanish-American,” “Indian,”
“Negro,” of “Other” Gretzler contends
that there should have been thirteen Span-
ish-Americans instead of two
In Taylor v. Louisiana, 419 US 522, 95
S.Ct 682, 42 L.Ed 2d 690 (1975), the United
States Supreme Court held that petit juries
must be drawn from a source fairly repre-
sentative of the community, and that the
defendant need not be a member of the
group allegedly excluded in order to raise
this question. The United States Supreme
Court has also set forth the elements «
challenger must show to establish a prima
facie viola:ion of the fair cross-section re-
quirement These are
612 PACIFIC REPORTER, 24 SERIES
“(1) that the group alleged to be excluded
is a ‘distinctive’ group in the community;
(2) that the representation of this group
in venires from which juries are selected
is not fair and reasonable in relation to
the number of such persons in the com-
munity; and (3) that this underrepresen-
tation is due to systematic exclusion of
the group in the jury-selection process.”
Duren v. Missouri, 439 U.S. 357, 364, 99
S.Ct 664, 668, 58 L.Ed.2d 579, 587 (1979)
(23) We note that jurors in Arizona
were selected at that time from voter regis-
tration lists as provided in ARS. § 21-
BOL(A) The use of voter registration lists
as 8 sole source of jurors is not constitution-
ally infirm absent a showing of systematic
exclusion in the compiling of such lists
“* © © we note that even if defendant
does establish that blacks do not register
in proportion to their share of the com-
munity population, which is all he seeks
to show, he will have failed to demon-
strate any systematic exclusion of blacks
for jury duty. Although the registered
voters list from which jurors are drawn
may not parallel exactly the proportion of
aech minority within the community, that
ja no way establishes or even demon-
strates systematic exclusion. Taylor v
Lovisiana, 419 U.S. 622, % S.Ct G92, 42
LEd2d 690 (1975) ° ° °" State v
Watson, 114 Ariz 1, 16, 569 P.2d 121, 136
(1976), cert. denied 430 U.S. 986, 97 S.Ct.
1687, 52 L.Ed2d S82 (1977) See also
State v. Lee, 114 Aria 101, 559 P.2d 657
(1976), United States v. James, 453 F 2d
27 (9th Cir. 1971).
And
“A defendant is not entitled to s jury
which is composed of, with materia! preci-
sion, the exact proportion of his race as
exists in the genera! population. Al! that
's required is a jury selected by « process
where the members of his race are not
systematically excluded.” State v. Tay-
lor, 109 Ariz. 267, 272, 508 P2d 731, 736
(1973).
(24] Even though there may have been
underrepresentation as to this particular
jury venire, we do not find this underrepre-
STATE v. GRETZLER
Ara 104]
Cie os, Arte. 613 P26 1023
sentation is due to systematic exclusion in
the jury selection process. We find no er-
ror
c. Did the trial court abuse its discretion
as to voir dire’
[25) On 13 October 1975, the defense
filed a motion to “allow defense counsel to
conduct a full blown voir dire examination
of the jury panel.” The trial court denied
this motion. A written questionnaire con-
sisting of eighty-four questions was jointly
formulated by the prosecutor, defense at-
torney, and tria! judge. Each of the one
hundred origina! jurors answered the ques-
tionnaire. Then each of the one hundred
was questioned outside the presence of the
other jurors by the trial judge The de
fense attorney and prosecutor asked ques
tions when they deemed it necessary to do
so. Although defense counsel did not con-
duct voir dire, he actively participated in
the questioning of the jurors at each stage
The defense was not foreclosed from asking
any relevant questions See Rule 185d),
Arizona Rules of Criminal Procedure, 17
ARS, State v. Melendez, 12) Ariz 1, 588
P.2d 294 (1978) We find no error
4. Did the trial court err in limiting the
defense to ten peremptory challenges’
On 14 October 1975, the defense filed «
motion requesting that it be allowed an
unspecified number of peremptory chal-
lenges, in addition to the ten specified by
Rule 184, Arizona Rules of Crimina) Proce-
dure, 17 ARS. The defense argued that
the extra challenges were necessary to viti-
ate the impact of pretrial publicity on the
jury panel. The tria) court denied this mo-
tion.
(26) We have stated above that there
was no significant prejudice among poten-
tia! jurors from any alleged pretrial publici-
ty. The defendant cites no authority for
the proposition that the trial court should
have granted him more than ten perempto-
ry challenges provided him under Rule 18.4,
nor does he suggest any way in which he
was damaged by having only ten challenges
rather than more. We find no error.
@ Sequestration of the jury
On 14 October 1975, the defense moved
that the jur be sequestered This motion
was denied by the ta) court. Our rule
Slales
“194 Separation and detention of jurors
“The court in ite discretion may permit
jurors to separate or, on motion of any
party, may require them to be seques-
tered in charge of « proper officer when-
ever they leave the jury box. The court
shal! admonish the jurors not to converse
among themselves or with anyone else on
any subject connected with the trial, or to
permit themselves to be exposed to news
accounts of the proceeding, or to form or
express any opinion thereon until the ac-
tion is finally submitted to them If the
jurors are permitted to separate, they
shal! also be admonished not to view the
place where the offense allegedly was
committed” Rule 194, Arizona Rules of
Crimina! Procedure, 17 ARS
[27] Publicity is the chief factor « trial
judge should consider when determining
whether to sequester a jury. Although the
publicity in Pima County was sufficient to
convince the trial judge to grant the mo-
tions for change of venue, the publicity in
Yavapai County was not such that it was
necessary to sequester the jury. As we
have indicated above, the jury pane! had no
members who were aware of even the bare
fects of the crimes with which Gretzler was
charged. The tria! court cautioned the jur-
ors at the beginning and end of every ses-
sion te avoid exposure to news stories or
conversations concerning the trial, in ac-
cordance with Rule 194, supra After the
pane! of thirty-six was selected, and before
the final twelve were chosen, two members
of the jury responded affirmatively to the
court's questions as to whether they had
heard anything about the case during «
week-end recess. The court promptly in-
vestigated the kind and extent of their ex-
posure to outside information to the satis-
faction of both State and defendant. The
publicity was not inflammatory or exces-
sive.
1042 Ariz
“When * * °* publicity is not sensa-
tional nor inflammatory, there is no need
to sequester the jury particularly when
the jury has been cautioned not to read
the newspapers, listen to the radio or
watch television during the trial and
there is no indication that the court's
instructions were violated” Collins v
State, 589 P.2d 1283, 1291 (Wyo 1979)
See also State v. Richmond, 112 Ariz. 228,
640 P.2d 700 (1975), State v. Lippard, 26
Ariz App 417, 549 P.2d 197 (1976), Anno-
tation, 72 A.L.R3d 100
Gretaler contends, however, that because
the newspapers the jury received were cen-
sored, the jury knew this was a sensational
case. Just prior to the beginning of trial,
the trial court explained to the jurors that
they had to forego newspapers and news
broadcasts for the duration of the trial
The judge informed them that newspapers
in which stories concerning the case were
excised would be provided for the jury to
read during recesses. Censored newspapers
were provided during jury selection as wel!
Gretzler alleges that these newspapers were
themselves prejudicial because the excwions
indicated to the jurors the fact that the
trial was newsworthy. We do not agree
(28) It is not uncommon to provide cen-
sored newspapers and magazines for jurors
in a long trial so that they will not, as the
trial court put it in this case, “fee! totally
left out of the news that [is] going on in the
world.” We believe the court's concern for
the jury was commendable, and we do not
believe that the excised portions of the
newspapers indicated that the trial was
more important than the facts presented to
the jury would reasonably be expected to
indicate. We find no error, See State v
Braun, &2 Wash.2d 157, 509 P.2d 742 (1973)
Finally, in his pretrial caution to the jury,
the judge made the following statement
“One of the ways in which @ court can
insure that jurors don't bear or read any-
thing about the case while they're sitting
on the jury is to sequester them, which
means to put them in s hotel and not let
them go home to their families and go
about their daily affairs. But it is not
612 PACIFIC REPORTER, 24 SERIES
the intention of the court to do that in
this particular case. If the court finds
that it loses one or two jurors because
they aren't following the admonitions of
the court in not talking about the case or
hearing anything about it or discuss it, it
may be that that admonition won't be
sufficient, and that it—as to the balance
of the jurors that may remain, they
would have to be sequestered.”
[29] Gretzler objected that this state-
ment was # threat which would so intimi-
date the jurors that they would not dare
reveal to the court that they had been ex-
posed to prejudicial statements. Gretzler
has shown no instance where a juror was
exposed to prejudicial statements Neither
do we believe that jurors are so easily in-
timidated. The court merely gave them the
alternative to sequestration We find that
the statement is a proper admonition of the
kind contemplated under Rule 194, supra
We find no error
ADMISSIBILITY OF DEFENDANT'S
CONFESSIONS
On 8 November 1973, at about 1010 a
m., Gretzler was arrested in a hotel in Sac-
ramento, California, on warrants arising
out of the murders that occurred in Marico-
pe County, Arizona, and San Joaquin Coun-
ty, California. Immediately on arrest he
was advised of his Miranda rights, The
accused was them taken to the Sacramento
Police Department where he was strip-
searched and again advised of his Fifth and
Sixth Amendment rights. He said he un-
derstood his rights, but wished to make «
statement. Gretzler was questioned two
more times by California authorities about
the California crimes, always after being
advised of his Miranda rights. He was also
interviewed by two California psychiatrists
who later testified as to Gretzler's compe-
tency
The following morning, 9 November, at
about 10:00 a m., the defendant was again
advised of his Miranda rights. Once more
he waived them. He was again interviewed
by San Joaquin authorities, this time ac-
STATE v. GRETZLER
Arz 1043
Cue me Arte. 012 P26 1009
companied by Detectives Arellunes and Mil-
ler from Maricopa County During this
tape recorded interview, Arellanes made
the following comment
“Okay, Douglas, from what we under-
stand you have been real cooperstive
with these gentlemen here and you told
them—you have gone right down the line
and told them everything, nght” Okay
We would appreciate it at this time if you
would do the same thing with us
Chances are that we may not be able to
prosecute you in Arizona”
The questioning was interrupted twice
Once the defendant was taken via elevator
to & courtroom in the same building for
arraignment, but returned to the interview
room because the magistrate was not ready
for him. The second time he was taken to
the court, arraigned, and appointed « law-
yer
At his Arizona voluntariness bearing,
Gretaler testified that during the second
elevator ride he had beer coerced into ad-
mitting the Maricopa County murders
“My hands were chained to my sides on &
chain belt. 1 was standing in the eleva.
tor. It's got two sections, # front like out
there (indicating), and the beck has «
cage. They put you in there and some of
the guys in there grabbed me and pressed
me up against the wall”
Gretaler also testified that no one ever hit
him or otherwise hurt him while he was in
custody. The Maricopa detectives testified
at the hearing that they had told Gretzler
in the elevator that they believed he was
lying about the Maricopa crimes, but that
there had been no physical harassment of
the defendant. Up until this elevator ride,
Gretaler maintained that Bob Robbins and
Yafah Hacohen, the couple he and Steelman
murdered in « Maricopa County trailer
park, were, as far as he knew, still alive
While in the elevator, he admitted they
were dead and agreed to give Arizona de-
tectives @ statement concerning their
deaths
oliowing bis arraignment and the ap
pointment of counsel, the two Maricope
County officers concluded their converse-
tion with Gretzler The newly appointed
lawyer, George Dedekam, was present, as
the following excerpt from « tape-recording
of the session indicates
“Detective Ambrose. Defendant Douglas
Edward Gretsler’ The date 11-09-73
The time is 11:50 hours Approximately
twenty minutes before this interview, an-
other interview was held This interview
was discontinued to take Mr Gretzler
before Municipa! Court Judge for his first
arraignment. At this Court Attorney
George Dedington (sic) was appointed as
the attorney of record for Mr Gretsler
“Douglas, the reason I put that in the
recording—the reason I've advised you
and recorded on here that we went to the
Court and you were appointed an attor-
ney is because now officially you have an
attorney representing you All nght, be-
fore we can question you any further
we're going to contact your attorney and
we're going to talk with him and have
you talk with him and advise him that
you are going to make further statements
to us Do you understand that’
“GRETZLER. | understand that. Now,
1 am willing to make @ statement, with or
without him
“Q You want to make # statement with
or without him, is that correct’
“A Yes, yes
“Q All right. We're not going ask
you any questions from this point on until
we have Mr. Dedekam on the phone or
here in person
“A Right
“Q You understand that’
“A Yes, | understand that. Can | have
these removed, these shackles from my
legs”
“Q Beginning to bite in « little bit?
“A Yeah, they hurt. Okay, I think I'l)
go along with that, okay for now.
“Q The reason we're trying to get ahold
of you we brought him down, he was
making statements. (Talking te Dede
kam)
“DEDEKAM: He indicated that I hadn't
told him not to; I didn’t have « chance in
Court
1044 Aris
“GRETZLER: No, that's all right. I did
it wilfully.
“DEDEKAM: Okay, no more statements,
then, okay’
“DETECTIVE AMBROSE: And for your
information, Mr. Dedekam, there has
been no questioning at all. We advised
him of this, that he would have to talk
with you first
“DEDEKAM. Seriously, okay’ They do
not have very many reports at this time,
go it'll probably be sometime next week
before I come out to see you, because |
want to review the reports, before I talk
to you okay’
. . . . . .
“DEDEKAM Okay, now I'll be out to
eee you. A number of the inmates are
going, if they're pear or around you,
they're going to be wanting to question
you
“GRETZLER. I'm sure, but they're not,
I'm in maximum security anyway
“DEDEKAM. Don't talk. 1 don’t think
they wouldbe * ° * if they do* °
(GARBLED)
“GRETZLER I won't say anything
“DEDEKAM Then I'll be up to see you,
okay’
The interview concluded about noon
Late that night, Detectives Bunting and
Tucker of the Tucson Police Department
spoke with the defendant for the first time
about the Tucson murders. They told
Gretaler they were investigating the Sierrs
and Sandberg murders and that he would
probably be prosecuted for these crimes
At the voluntariness bearing, Bunting testi-
fied as follows about this conversation
“We explained to him that we could not
talk to him unless he waived his rights to
612 PACIFIC REPORTER, 24 SERIES
He told us he had been advised of his
rights many times, and that he was fully
aware of his rights, and that's all he had
heard since he was arrested was his
rights, and that he was just completely
aware of them; that he did not want to
make « statement, but he would talk to
us verbally
“Q What happened next’
“A After I was satisfied in my mind he
knew his rights, we went ahead and
spoke with him about it first ex-
plaining to him that it would be used
against him.”
Gretaler testified that he understood his
statements could be used against him and
that he spoke willingly to Bunting and
Tucker This conversation lasted about an
hour, no tape recording was done because
the defendant did not want the tape record:
er running At the end of the interview,
Gretaler said he might be willing the next
day to make a tape recording In Bunting’s
words “He wanted time to think about it
and (said) to come back.”
At about 1 p.m. on 10 November, Detec-
tives Bunting and Tucker returned to talk
with Gretaler to see whether he would tape-
record « statement about the Tucson crime
He was advised of his rights and agreed to
answer questions on tape In this brief
tered the Sandberg home or killed the cou-
ple
re
STATE v. GRETZLER
An. 1045
Che me Arte, 012 P26 1023
“Q All right, before we get started 1
want you to understand that yester-
day your attorney talked with you
“A Yes, he did
“Q And said certain things to you
“A Right He advised me not to say
anything
“Q All nght
“A But I'm waiving those night, I'm go
ing to
“Q All right, I'm going to advise you of
your rights again, and then you can—
“A Right”
The officer then read the defendant his
Mirands righ
“Q I've advised you before of these
rights Do you, do you still under.
stand those nghts’
“A Yes, 1 do
“Q All right, your attorney is George De-
dekam’
“A Yes
“Q Do you desire to call him at this time
or would you like to just—
“A 1 would like to talk to him later, not
at this time, I don't”
Gretaler then signed a waiver form provid-
ed by Detective Ambrose
“DETECTIVE AMBROSE Q Do you
not desire your counse) to be here”
“A 1 do not, and this is voluntary ~
This interview ended at about 5 p.m
Larry Hust of the Tucson Police Depart
ment interviewed Gretzler on 19 November
1973, and Gretzler again reiterated that his
statements were made voluntarily and in
full knowledge of his rights
Of the statements outlined above, three
were used by the State as trial evidence
The first was the tape recording taken by
Detectives Bunting and Tucker on the af-
himself, had murdered numerous people, in-
cluding eight of the Lodi victims and both
of the Sandbergs. The third statement in-
troduced at trial was Gretzler's 19 Novem-
ber avowa! that earlier conversations with
the police had been voluntary
a Did the evidence before the tra) court
support a finding that Gretzler's confes-
sions were voluntarily made”
Gretzler moved to suppress al! statements
made by him to authorities while he was in
police custody A voluntariness hearing
was held and ten witnesses, including
Gretaler, testified The trial court listened
to all tape recorded statements in their
entirety Following the hearing, the court
found that Gretaler was fully advised of his
Miranda rights and that he knowingly, in-
telligently and voluntarily waived these
rights Gretzler's motion \o suppress was
therefore denied On appeal, Gretsler
alleges that the trial court's finding was
reversible error because it was unsupported
by the evidence We do not agree
[30] “[C)onfessions are prima facie in-
voluntary and the burden is on the state to
show by a preponderance of the evidence
that a confession was freely and voluntarily
made” State v. Edwards, 122 Ariz 206,
212, 504 P.2d 72, 78 (1979). See also Rule
16.2(b), Arizona Rules of Criminal Proce-
dure, 17 ARS, State v. Hall, 120 Ariz 454,
$86 P.2d 1266 (1978). A confession will be
found involuntary where the court, con-
siderirg a!) the circumstances, determines
that one of the following factors exists: (1)
impermissible conduct by police, (2) coercive
pressures not dispelled, or (3) confession
derived directly from prior involuntary
statement. State v. Steelman, supra, 120
Ariz. at 309, 585 P.2d ot 1221. None of
these factors exist in this case. Neither iss
confession made involuntary by the mere
fact that it was made outside the presence
of an attorney. State ex rei. Barger *.
Superior Court, 105 Ariz. 658, 468 P.2d 580
(1970).
“[A) blanket prohibition against the tak-
ing of voluntary statements or 8 perms
1046 Ari
nent immunity from further interrogs-
tion, * * ° would transform the Mi-
randa safeguards into wholly irrational
obstacles to legitimate police investiga-
tive activity, and deprive suspects of an
opportunity to make informed and intelli-
gent assessments of their interesta”
Michigan v. Mosley, 423 U.S. 96, 102, 96
S.Ct. 321, $26, 46 L_Ed.2d 313, 320 (1975)
See also United States v. Rodrigvet-
Gastelum, 569 F.2d 482 (9th Cir.), cert
denied 436 US. 919, 98 S.Ct 2266, &%
L.Ed.2d 760 (1978)
Gretzler was fully informed of his consti-
tutional right to counsel and right to re-
main silent as required by Miranda v Anzo-
na, 384 US. 436, 86 S.Ct 1602, 16 L.Ed 2d
@4 (1966) There is no question that he
understood the rights he was waiving when
he confessed to the crimes he had commit.
ted in Pima County
(31) The facts fully support the trial
court's finding that the State met its bur-
den of proving Gretzler's statements volun-
tary. See State v. Sample, 107 Ariz 407,
489 P.2d 44 (1971), There was no error in
the denial of defendant's motion to sup
press
b. Was there a violation of defendant's
right to counsel, rendering his state-
ments inadmissible’
(32) As further grounds for suppression
of his California statements, defense coun-
se! argued both at trie! and on appeal that
Gretzler's right to counsel was violated. He
contends that “confessions obtained by Ari-
gona authorities without the benefit of Ari-
gona counsel,” must be suppressed. The
defense cites no authority to support this
view. We find nothing to require that an
attorney must be provided by « state to a
defendant before that defendant is brought
into and within the custody and jurisdiction
of that state. Of course, if the defendant
asks for an attorney, he may not be ques
tioned until he has one appointed, but an
attorney in the state in which he is then in
custody will satisfy the requirements of de-
fendant's right to counsel.
612 PACIFIC REPORTER, 24 SERIES
{33} In the instant case, we note that
Gretzler, of his own accord, largely disre-
garded the advice to remain silent given
him by his California attorney. Where
waiver of right to counsel in California so
unequivocally followed the proper Miranda
warnings, subsequent statements made in
California were not rendered inadmissible
by the fact that Gretzler had not yet been
appointed Anzona counsel!
¢. Did the trial court wrongly limit the
defense challenge of voluntariness of
certain evidence by not allowing the
defense to question its admissibility be-
fore the jury’
Gretzler argues on appeal that the trial
court prevented him from adequately
presenting the issue of voluntariness to the
jury At tial, the State introduced Tucson
policeman Larry Hust to lay the foundation
for the playing of the tape recording of the
19 November 1973 conversation between
Gretzler and Hust. Defense counsel argued
that he should be allowed to voir dire Hust
as to voluntariness prior to the tape's being
played The judge ruled that, since he had
found the statement admissible, it would be
played to the jury without prior questioning
by the defense. The defense would be al-
lowed to raise the voluntariness issue in its
crossxamination of Hust, after the jury
had heard the recording. The defense re-
newed this argument as each Gretzler state-
ment was introduced, and each time it was
overruled
We believe the judge's rulings follow
from a correct interpretation of the law
concerning the respective roles of judge and
jury in weighing voluntariness as set forth
by the United States Supreme Court in
Jackson v. Denno, 378 US 368, & S.Ct
1774, 12 L.Ed 2d 908 (1964).
“The only issue decided in the Jackson
ae
2 ress er rg
STATE v. GRETZLER Ariz.
1047
Cite an, Artz, 612 F.2d 1023
fession outside the presence of the jury
He must then make a definite determina-
tion whether the purported confession
was voluntary or involuntary. If he de-
termines it was involuntary it may not be
If he determines it
was voluntary, he may admit it for con-
sideration by the jury
mit it to the jury merely upon a finding
that there is a conflict in the evidence,
without himself first definitely resolving
the conflict.” State v. Owen, 9 Ariz
274, 275, 394 P.2d 206, 207 (1964) See
also Rule 16.2, Arizona Rules of Criminal
Procedure, 17 ARS
{34] Once the court has found his state-
ments admissible, a defendant may, of
course, present evidence tending to refute
the statements’ validity. The jury is the
ultimate arbiter of voluntariness, and is
free, “in effect, [to] disagree with the
judge, and reject the confession.” State v
Owen, supra, 96 Ariz. at 277, 304 P 2d at
208. Once the evidence had been admitted
as the result of a hearing outside the pres-
ence of the jury, the defendant may not
challenge the statement’s admissibility tee
fore the jury although he may challenge its
voluntariness on cross-examination
admitted in evidence
He may not sub-
d._ Did the court's granting the State's mo-
tion to prohibit mention of the death
penalty unduly limit the defense’s argu-
ments on voluntariness?
During a recess before the playing of the
Hust tape to the jury, the trial court heard
a State motion in limine that there should
be no reference at trial to the death penal-
ty. The State argued that puniahment is a
matter for the judge and should not be
considered by the jury in determining guilt
or innocence. The motion was opposed by
the defense, but was granted by the trial
court. On appeal, the defense asserts that
the court's ruling was reversible error be-
cause it precluded testimony or argument
that Gretzler’s confession was obtained by
threats of capital punishment. In a previ-
ous case of this court we stated:
“It appears from the record that the trial
court's reason for precluding evidence of
the penalty the witness could have re-
ceived was to prevent the jury from
learning of the penalty the defendants it.
this case might receive if convicted of
first degree murder, Whatever merit
this reason may have, it cannot outweigh
the right of the defendant to cross-exam-
ine the State's major witness on what he
expects in return for his testimony The
fact that the witness faced a possible
death penalty if he did not testify for the
State surely would be a factor if not the
factor in the witness's decision to testify.
The trial court's refusal to allow inquiry
into the penalty the witness would have
faced had he not agreed to testify was
reversible error.” State v Morales, 120
Ariz. 517, 520, 587 P.2d 236, 239 (1978).
In Morales, supra, the threat of the death
penalty was an inducement for the witness
to testify. We held that foreclosing refer-
ence to the death penalty was prejudicial to
the defense and thus outweighed the policy
against allowing punishment to be men-
tioned before « jury not charged with deter-
mining sentence
{35} In the instant case, the death pen-
alty was not a factor in Gretzler’s confes-
sion since Gretzler admitted he did not
know Arizona had the death penalty. At
the voluntariness hearing outside the pres-
ence of the jury, Gretzler stated:
“Q Do you understand now what my
questions are trying to find out?
“A No
“Q The 19th was the day you gave the
statement to Mr. Hust. You remem-
ber Mr. Hust with the very short
haircut that came in and testified?
“A Yea.
“Q You remember giving the statement
to him?
“A Yeah.
“Q That was the last statement that you
gave that's been introduced into this
proceeding. Is that your recollection?
“A Yeah. I think so.
“Q Prior to that, did you know that life
imprisonment was the maximum pen-
alty for the charges against you in
California?
1048 Ariz
“A 1 guess I figured it probably was, but
I wasn't sure.
“Q Between the 8th and 19th when you
gave the statement to Hust, did you
ever know what the penalty was for
the Arizona charges’
“A For the Arizona charges’
“Q Yes, what the maximum was for
those charges’
“A No, not for sure
“Q What did you think, if you thought
about it at all? Did you’
“Al figured probably—I don't know,
twenty years, I don't know
“Q Did you think about it’
“A No, not really.”
We find no error
OBJECTIONS TO EVIDENTIARY
RULINGS
a Were defendant's prior convictions ad-
missible for impeachment purposes”
[36-39] On appeal, Gretzier renews his
trial objection to a ruling that his California
convictions, based upon crimes that oc-
curred after the crimes for which he was
being tried, could be used to impeach him if
he testified in his own behalf Impeach-
ment goes to the credibility of a witness
Conviction of a felony is material to a wit-
ness'’s credibility A witness may be
impeached by @ prior felony conviction even
if the witness is also the defendant and the
prior felony conviction was for a crime that
occurred after the crime for which the wit-
ness is being tried as a defendant The fact
that its application may have prevented
Gretzler from taking the stand is not mate-
rial. Spencer v. Texas, 385 US SS, 8!
S.Ct 648, 17 LEd2d 606 (1967), Siate v.
Myers, 117 Ariz. 79, 570 P.2d 1252 (1977),
cert. denied 435 U.S 928, 96 S.Ct 1498, 55
LEd 2d 524 (1978) We find no error
b. Did the trial court erroneously limit the
testimony which could be offered in
support of Gretzler’s drug intoxication
defense’
Before ruling on a State motion in limine
to preclude psychiatric testimony other than
612 PACIFIC REPORTER, 24 SERIES
opinions as to M'Naghten insanity and com-
petency, the court heard offers of proof and
testimony of expert witnesses outside the
presence of the jury. On this basis, the
court admitted expert testimony as to the
genera! impact of certain drugs on the av-
erage person. The court barred testimony
as to the possible impact of certain drugs on
Gretzler, because no expert could either
state to a reasonable medical certeinty
what the impact upon Gretzler would be or
had personally observed Gretzler in a drug-
intoxicated state. The court also refused to
allow expert opinion on personality defects
other thar M'Naghten insanity or incompe-
tence. Testimony of the defendant's sister,
Joanne Gretzler, as to occasions when she
had seen him take drugs, was admitted over
the State's argument that such evidence
was too remote to have probative value,
Ms Gretzler having last seen her brother on
Christmas Day, 1972 She was precluded,
however, from testifying about the defend.
ant’s hospitalization for drug overdose in
1969, because she had no first-hand know!-
edge of that event
At the conclusion of trial on 3 November
1975, the defense moved for « mistrial!
based on the court's limitation of psychiat-
ric and lay witnesses of proof of drug intox-
ication The court denied the motion
{49-42} Evidence of voluntary intoxica-
tion is admissible only to negate specific
intent ARS. § 13-132 See also State v
Steelman, supra; State v. Cooper, 111 Anz
332, 529 P.2d 231 (1974). Testimony con-
cerning intoxication should be limited to the
time of the crime for which the defendant
ie being tried. State v. Durgin, 110 Ariz.
250, 517 PB! 1246 (1974). In the instant
case, it appeared that no one could testify
as to the effect of drugs on Gretaler at the
time of the crimes. We find no error
e Did the trial court err in admitting pho
tographs of the murder victims into ev!
dence’
Defendant objects to the admission into
evidence of two photographs of the Sand-
bergs’ corpees. The pictures were taken at
STATE v. GRETZLER
Art 1049
Che oe. Arte. 612 P26 1023
the couple's apartment. Each black and
white photograph shows fully dressed vie-
tim, bound and gagged, as discovered by
the Tucson police
[43-45] The admission or exclusion of
photographs of murder victims is left to the
trial judge's discretion State v Thomas,
110 Ariz. 120, $15 P.2d 865 (1973) As long
as the photographs have probative value
they are admissible, even though they may
arouse the emotions of the jury. Stete v
Ferrari, 112 Aria. 824, 541 P.2d 92) (1975)
Here, as in Ferrari, supra, the pictures
tended to corroborate the State's theory of
how the homicide was committed, to illus
trate and explain testimony, and to prove
malice aforethought We find no abuse of
discretion in the tna) court's ruling
d. Was there adequate foundation for the
admission of fingerprint evidence’
[46) At trial, the defense argued that
fingerprint evidence was inadmissible for
lack of foundation, in that the 1D. techni
cian, Reese, was uncertain as to who lifted
which prints. This objection is reiterated
on appeal Our reading of the tra! tran-
script reveals that Reese clearly testified
that he himself lifted all of them He
testimony fully describes the process by
which each print was lifted and labelled,
who labelled each print, and the location
from which each was taken. The trial
court properly admitted the fingerprint evr
dence
@ Did the trial court err in admitting into
evidence s hearsay account of a state
ment made by co-perpetrator Steelman’
[47] At trial, witness Donald Scott testi-
fied that while he, Gretzler, and Steelman
were riding in the Sandbergs’ car, Steelman
said it was stolen from two people who had
gone to Hawaii. Defense counsel objected
that his hearsay sccount of Steelman’s
statement was erroneously admitted into
evidence and argued that it was grounds
for e mistrial. The court denied his mistrial
motion. We agree with the trial court that
the statement was admissible as an extraju-
dicia) comment of a co-conspirator made in
the course and furtherance of the conspir-
acy. See State v. Speerschneider, 2 Ariz
App 340, 543 P.2d 46) (1975) We find no
error
{. Was the testimony of James Nelson er-
roneously admitted into evidence”
James Nelson, the manager of the condo
minium complex in which the Sandbergs
lived, testified at Gretzler’s trial. Nelson
was not asked to identify Gretzier at trial
He testified that he was @ friend of the
Sandbergs, that they were students, that he
ea» a blue Pontiac Firebird, later shown to
be Armstrong's drive into the housing com-
plex and eventually reported its presence to
the police He also testified that he saw
Michael Sandberg walk to his condominium
with two men and that Sandberg did not
respond to his frinnd’s greeting At the
conclusion of this testimony, defense coun-
ee} moved that it be stricken from the rec-
ord He asserted that the testimony was
irrelevant because it did not connect Gretz-
ler to the crime We do not agree
[48] Nelson's testimony was probative
of several links in the chain of events lead-
ing from the kidnapping of Armstrong to
the murder of the Sandbergs For exam-
ple, he testified as to the approximate arriv-
a! time of the Firebird and stated that two
men, at & time not long after Armstrong's
kidnapping, accompanied an apparently un-
comfortable Sandberg up the stairs to his
condominium Such testimony was rele
vant despite the fact that i
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