# Petition — DOUGLAS GRETZLER v. ARIZONA (No. 82-6556) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1407%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1982 ## Text RECEIVED Ree.\S, 1988 "ae oe belle ULE 2K SUPREM" fee one 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. @ &: ,” 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 it did not apecifi- cally identify Gretzier, Sisie v. Kennedy, 122 Ariz. 22, 592 P.2d 1288 (App 1979). State v. Mosley, 119 Aria. 393, 58) P.2d 238 (1978). See also Rule 402, Arizona Rules of Evidence, 1TA ARS; State ex rel. LaSots v. Corcoran, 119 Ariz 573, 583 P2d 229 (1978). The trial judge did not err in re fusing the defendant's motion to strike Nel- eon's testimony. & Further evidentiary issues raised on ap- {49} In what be calls “Issue XXXII" of his brief, Gretzler states that twenty-four 1050 Aris. additional evidentiary rulings of the trial court were erroneous. The brief merely lists objections made at trial; the defendant in no way argues the merits of his objec- tions See Rule 31.1%(cX1Kiv) of the Arizo- na Rules of Criminal Procedure, 17 ARS We have reviewed the issues and find no fundamental error. (34) Finally Gretzler asserts, without argument, that be was prejudiced by the court's admission of evidence that he was arrested by California police. The fact that Gretzler was arrested by somebody prior to tris! was obvious to the jury. We are un- able to perceive how testimony that Gretz- ler was held in another state on Arizona indictments would damage his case before the jury CHALLENGES TO MISCELLANEOUS RULINGS MADE DURING TRIAL @ Did the trial court improperly limit the scope of cross-examination’ Gretzler contends that the trial court er- roneously prevented his crossexamining & State's witness as to whether Gretzier had said during « taped confession that he had never been arrested previously. Our review of the record reveals that Gretzler misstates the trial court's ruling. In fact, the court ruled that such crossexamination was im- proper as long as Gretzler's character was not in issue and that the court might rule differently if the defense chose to raise the issue of character (51) Since Gretzler did not choose to raise his character as an issue and face the risks inherent in that choice, it was not error for the trial court to preclude crom- examination on that issue State v. Fierro, 108 Aria. 268, 496 P.2d 129 (1972), Singh v. State, 8 Aria. 422, 280 P. 672,67 ALR 129 (1929). {52} The trial court also refused to allow the defense to cross-examine witness Arm- strong concerning eiiher a polygrap) exam- ination he took wher the police investigated his kidnapping or his reasons for leaving « job with the Tucson Police Department. In & heari-e outside the jury, it was shown 612 PACIFIC REPORTER, 24 SERIES that neither the polygraph test nor Arm- strong’s job record contained any evidence relevant to Gretzler’s guilt or innocence We have held that the “absolute right to cross-examine ‘within the proper bounds’ does not license the defendant for a fishing expedition into completely irrelevant matter.” State v Shaw, 93 Ariz. 40, 44, 878 P.2d 487, 490 (1963). Accord, State v. Williams, 120 Aria. 600, 587 P.2d 1177 (1978). See also State v. Robison, 125 Ariz. 107, 608 P.2d #4 (1980) We find no error. b. Did the trial court err in refusing « defense motion to continue after the jury was impaneled’ On 22 October 1975, after the jury was impaneled, the defense moved that the tra! be continued. The two chief grounds for the request were that the defense was un- able to find Michael Marsh, whom it wished to call as & witness, and that the defense wanted to obtain the results of ballistics and fingerprint tests prior to making an opening statement. The trial court, which, as we have discussed above, had been gen- erous in granting continuances prior to im- panelment of the jury, denied the motion {33} The statement taken by police from the missing witness, Michael Marsh, indi- cates that his testimony would have been cumulative to that of Joanne McPeak and Donald Scott, who did testify at trial. In addition, there ie “no indication that this testimony would influence the outcome of the trial or would otherwise be helpful to the defendant” State v. Lacquey, 117 Aria. 231, 235, 671 P.2d 1027, 1031 (1977). Bee also State v. Ebert, 110 Aria 408, 519 P.2d 1149 (1974). Gretzler has not shown that either the ballistics or the fingerprint evidence would have benefited his case We find no error. € Did the trial court err in upholding Wil- lie Steelman’s assertion of « Fifth Amendment right to remain silent when called to testify at Gretzler’s trial’ Prior to trial, the defense notified the State that it intended to subpoena Gretz- STATE v. GRETZLER Are 1051 Cite me, Arte. 012 P26 1003 ler's codefendant, Willie Steelman, to testi- fy at Gretzier’s trial. Steelman, both per- sonally and through hie attorney, on Fifth Amendment grounds, consistently main- tained that he would not testify or even speak to Gretzler’s counsel The State made & motion in limine to preclude Steelman's appearing before the jury, if he intended to do no more than invoke his Fifth Amendment privilege The trial court held a hearing outside the jury to determine whether Steelman still intended to remain silent. At this hearing, Steelman refused to utter o word Hu attorney stated that he had advised his client to invoke the Fifth Amendment in order © protect his rights on appeal Gretzler moved that, faced with Steelman’s silynce, the court order him to testify or order an examination into his competency The court denied Gretzler’s motions Gretz- ler maintains thet the judge erred in deny- ing his defense motions to order Steelman to testify or to have him examined for competency [54] The Fifth Amendment privilege is available to @ convicted person when his conviction or sentence is being sppealed See State v. Moncayo, 115 Anz 274, S64 P.2d 1241 (1977), State v. Cots, 102 Aru 416, 432 P.2d 428 (1967), cert. denied 390 US 1008, 68 SCt 12%, D LEd2d 10 (1968) See also Cots » Eyman, 653 F 2d @9) (Mh Cir 1971) [55] In the present case, Steelman ap pealed both his conviction and his sentence, and they had not been finally disposed of on appeal. In these circumstances, he was en- titled to claim his Fifth Amendment rights. The tria! court correctly denied the defense motion to order Steelman to testify or un- dergo an examination for competency 4 Did the trial court err in precluding Steelman from asserting his Fifth Amendment privilege in the presence of the jury’? The trial court also granted the State's motion in limine to preclude Steelman from appearing before the jury if be intended to remain silent. Gretzler contends that this was error and we agree. The “privilege against self-incrimination is @ persona! im- munity for the witness and does not die qualify him from being called ° ° °” State v Cota, supra, 102 Ariz at 421, 432 P.2d at 483. In State v. Ortiz, 113 Ariz 60, 646 P.2d 796 (1976), the trial court ruled that the defense should be precluded from calling two witnesses who would certainly invoke their privilege ageinst eelf-incrimi- nation We reversed on Sixth Amendment grounds We held that while the defend- ant’s Sixth Amendment right to call wit- nesses would not enable him to force them to speak, he was entitled to show that he had presented “all the relevant evidence at (his) disposal” Ortiz, supra, 113 Anz at 61, 546 P2d at 797 (56) We believe the tria! court erred in precluding Steelman from appearing before the jury even though it was spparent that he would claim the privilege and not testify We do not believe, however, that this error reasonably could be thought to have “eon- tributed to the conviction” Fahy v. Con- necticut, 375 US 85, 66-87, 84 SC. 2, 230, 11 L.Ed.2d 171, 173 (1963). The de- fense in the instant case was deprived of only the bare right to show Steelman to the jury. It was not likely that Stee!man's absence would have any weight whatever on the trial Gretzler did not indicate, by means of an offer of proof, what he hoped to gain from Steelman or the questions that would be asked of him Gretzler’s convic- tion was based on solid evidence, including eye witness testimony, his use of property stolen from victims, fingerprints, and copi- ous statements from Gretzler himself Steelman’s non-eppearance st trial could not have contributed to the verdict We believe that while the tris! court erred in doubt.” Chapman v. California, 886 U5. 18, 23, 87 S.Ct. 024, O28, 17 L_Ed2d 706, 711 (1967). See also Harrington v. California, 1052 Ara 995 US. 250, 89 S.Ct 1726, 23 LEd2d 2 (1969). e. Did the trial court require Gretzler to offer proof on any element of first de- gree murder’ The State brought evidence to prove be- yond a reasonable doubt every element of first degree murder, including malice afore- thought ARS § 13-451 The defense then had the opportunity to present evi- dence of drug intoxication to negate the State's evidence of specific intent. Gretzler argued that the allocation to the defense of the burden of persuasion as to drug intoxication was impermissible under Mullaney v. Wilbur, 421 US. 684, 95 S.Ct 1881, 44 L.Ed.2d 508 (1975), In Mullaney, the United States Supreme Court invalida- ted a newly revised Maine murder statute which allowed the jurors to presume malice from « deliberate killing and required the defendant to negate this presumption by proof that he acted in the heat of passion In Patterson v New York, 432 US 197, 97 S.Ct. 2319, 53 L.Ed 2d 281 (1977), however, the court upheld a New York murder stat- ute requiring the state to prove the intent element and evtablishing extreme emotional disturbance cs an affirmative defense the defendant mus’ prove by # preponderance in order to redue the crime to manslaugh- ter. The Unitec! States Supreme Court held that defendants may be required to prove affirmative defenses where the prosecution is required to prove intent, and every other element of the crime charged, beyond « reasonable doubt. Patterson, supra. See also Leland v. Oregon, 343 US. 790, 72 S.Ct 1002, 96 L.Ed. 1302 (1952). (87) The procedure followed at Gretz- ler’s trial is distinguishable from the Maine procedure condemned by Mullaney. Here the State was granted no presumption as to any element of first degree murder. As in Patterson, the State was required to prove intent beyond « reasonable doub. We find ho error. 612 PACIFIC REPORTER, 24 SERIES f. Did the trial court err in denying Gretz- ler's motion for acquittal? (38) At the conclusion of the State's case, Gretzier made a motion for judgment of acquittal. The court denied this motion and the defense now argues that the denial was error, We do not agree. There was substantial evidence that Gretzler commit- ted the crimes with which he was charged State v. Parker, 113 Ariz 560, 558 P.2d 905 (1976). We find no error g. Did the trial court err in instructing the jury’ (89) Gretzler reasserts on appeal his ob- jections to the trial judge's refusal to give a number of his suggested jury instructions Considering the instructions as e whole, as we must, State v. Carr, 108 Ariz 203, 495 P24 134 (1972), we find that most of the instructions about which the defendant complains were substantially covered by the court's own instructions. If the substance of proposed instructions is adequately cov- ered by instructions actually given by the court, there is no error in their being refus- ed State v. Cookus, 115 Aria 99, 563 P.2U 898 (1977) See also State v. Melendez, supra. (60) Defendant's suggested instruction Number 9 read as follows “The testimony of any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care.” This instruction was properly refused as an improper comment on the evidence. State v, Settle, 111 Ariz. 394, 631 P.2d 151 (1975). Bee Art 6, § 27, Arizona Constitution. [61] The trial court also refused defense instruction Number 34 which stated “You are instructed that where « robbery ls completed prior to the death of the decedent, you may not consider the in- structions concerning felony-murder inso- far as determining whether the defend- ant is guilty of first degree murder. In other words if the robbery was completed —_——- STATE v. GRETZLER Are 1053 Cre oe Arte, 012 P20 1033 before the time of the Sandberg's deaths, you will find the defendant not guilty of murder first degree under the felony: murder theory.” This instruction incorrectly states the felo- ny-murder rule which does not refer to the time of death of the victim, but focuses on whether a death — -—— +--+ Eel Accord State v. Clark, supra, 126 Ariz. at 436-37, 616 P.2d at 896-97 (sense- less killings of former friends and co-workers, "totally with- out regard for human life" found depraved). The mere existence . of senselessness or helplessness of the victim, in isolation, ‘ need not always lead to a holding that the crime is heinous "é or depraved, however. See State v. Lujan, supra, 124 Ariz. at I7 "We have also considered acts done immediately after the actual ‘Ealing to determine the murderer's mental state at the time of the killing." State v. Lujan, supra, 124 Ariz. at 372, 604 P.2d at 636. a Y oo 3s: ss giit*s; =" 373, 604 P.2d at 637 (defendant's killing of victim already rendered unconscious in continuing attack by other members of gang involved in robbery not "especially heinous or depraved"); State v. Blazak, supra, 131 Ariz. at 604, 643 P.2d at 700 (unnecessary killing of bystander to robbery, in addition to killing of victim of robbery, not heinous or depraved). Where no circumstances, such as the specific factors discussed above, separate the crime from the "norm" of first degree murders, we will reverse a finding that the crime was committed in an "especially heinous, cruel; or depraved manner." “. See e.g. State v. Blazak, supra, 131 Ariz. at 604, 643 P.2d at 700; State v. Madsen, supra, 125 Ariz. at 352, 609 P.2d at 1052; State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637; State v. Brookover, 124 Ariz. 38, 41, 601 P.2d 1322, 1325 (1979); State v. Watson, supra, 120 Ariz. at 447-48, 586 P.2d at 1259-60. We must then consider whether the facts here fit within our definition of the terms "especially heinous, cruel, or depraved." We have already had the opportunity to review the facts of this particular crime in light of this statutory standard in Steelman II, supra. There we held the Sandberg murders to be heinous, cruel, or depraved, concluding: “First degree murder is by its nature wiliful, cruel and repugnant. But the facts of this case set it ‘apart from the norm of first degree murders. ' State v. Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979)." 126 Ariz. at 26, 612 P.2d at 482. We believe the same result is mandated in Gretzler's case. Michael Sandberg was kept tied up in a crouched position on his bed. A single stand of heavy parcel post twine extended up Michael's back in a V-pattern from his ankles to around his neck. It was configured in such a way as to choke Michael if his legs were straightened. He was confined in this manner for a sustained period. As we stated: — cae es “There can be no doubt that the victims suffered mental anguish as a result of being held prisoner for an extended period. Patricia, for example, had to take medication for her highly emotional condition as a result of being held prisoner. They knew that their captors were armed, hiding from the police, and anxious to escape. It may be inferred that throughout their imprisonment, they were uncertain as to their ultimate fate. This uncertainty had to be intensified when they were taken to separate rooms, bound and gagged."" Id. Patricia also had to endure the unimaginable terror of having her husband shot to death within her hearing, and then having to wait for her own turn to come. The Sandbergs cleariy suffered the kind of "mental and physical distress" we have held constitutes cruelty. State v. Tison, supra, 129 Ariz. at 543, 633 P.2d at 352. We thus find that this statutory aggravating circumstance is present in the instant case. Vv CONSTITUTIONALITY OF THE ARIZONA DEATH PENALTY STATUTE Defendant next contends that the Arizona death penalty statute, former A.R.S. § 13-454, presently § 13-703, is unconstitutional because it fails to provide adequate standards to guide sentencing discretion. This issue has been previously considered and rejected by this court on numerous occasions. State v. Blazak, supra, 131 Ariz. at 601, 643 P.2d at 697; State v. Jordan, 126 Ariz. 283, 285, 614 P.2d 825, 827 (1980), cert. denied 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); State v. Mata, supra, 125 Ariz. at 241-42, 609 P.2d at 56-57; State v. Richmond, supra, 114 Ariz. at 194-95, 560 P.2d at 49-50. Our statute, derived from the Model Penal Code (§ 210.6, Proposed Official Draft, 1962), and similar to the capital sen- tencing statutes upheld in Gregg v. Georgia, supra, and Proffitt vy. Florida, supra, sets out specific lists of aggravating and - 20 - 2 mitigating circumstances to be considered in capital sentencing decisions. Our statute also requires the court to consider any other relevant mitigating circumstances. We have explained thet the statutory scheme is intended to "resolv[e] the need for flexibility in order to afford individualized decision-making in capital cases and the need for standards to prevent arbi- trariness when unbridled discretion rests with the sentencer * * *," State v. Greenawalt, supra, 128 Ariz. at 175, 624 P.2d4 - at 853 (1981), cert. denied 454 U.S. 882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981), citing State v. Mata, supra, 125 Ariz. at 242, 609 P.2d at 57. We have also stated that “the purpose of an aggravation/miti- gation hearing is to determine the character and propensities of the defendant. The punishment should fit the offender and not merely the crime. Williams v. New York, 337 U.S. 24I, 69 S.Ct. 1079, FS L.Ed. 1337 (1949)."" State v. Valencia, 124 Ariz. 139, 141, 602 P.2d 807, 809 (1979). Our capital sentencing statute applies only to those found guilty of first degree murder, and requires the trial judge to choose either a sentence of death, or life imprisonment without the possibility of parole for twenty-five years, based on the evidence of aggravating and mitigating circumstances. Former A.R.S. § 13-454(D), presently § 13-703(E). In view of the gravity of the death penalty, we have also held that in all capital cases, automatically appealed to this court under Rule 31.2(b), Arizona Rules of Criminal Procedure, 17 A.R.S., we will conduct an independent review of all matters of aggravation ard mitigation, and will decide independently whether the death sentence should be imposed in each case. State v. Richmond, supra, 114 Ariz. at 196, 560 P.2d at 51. We also conduct a proportionality review in each case to consider "whether the sentences are excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Id., (citations omitted). - 21 - (i Where none of the statutory aggravating circumstances are found.to be present, our statute prohibits the death penalty. Former A.R.S. § 13-454(D), presently § 13-703(E). See e.g. State v. Madsen, supra, 125 Ariz. at 353, 609 P.2d at 1053; State v. Lujan, supra, 124 Ariz. at 373, 604 P.2d at 637. Where one or more statutory aggravating circumstance is found, and no mitigation exists, the statute requires the death penalty. Former A.R.S. § 13-454(D), presently § 13-703(E). See e.g. State v. Smith, supra, 131 Ariz. at 35, 638 P.2d at ;. 702; State v. Jordan, supra, 126 Ariz. at 290, 614 P.2d at 832. : Where both aggravating and mitigating circumstances are found in a given case, the trial judge, and then this court on review, must determine whether the mitigating circumstances are "sufficiently substantial to call for leniency."' Former A.R.S. § 13-454(D), presently § 13-703(E). This necessarily involves the difficult weighing and balancing of the aggravating and mitigating circumstances present. We have stated that the number of aggravating and mitigating circumstances is not dis- positive, but rather their gravity: "The statute does not require that the number of aggravating circumstances be weighed against the number of mitigating circumstances. One mitigating circum- stance, for example, may be ‘sufficiently substantial’ to outweigh two aggravating circumstances. The converse is also true -- one aggravating circumstance could be so substantial that two or more mitigating circumstances would not be ‘sufficiently substantial to call for leniency.‘ A.R.S. § 13-454(D). Both the trial court and this court must then ‘weigh’ the mitigating circumstances against the —.s cir- cumstances to determine if leniency is re- quired[.]"" State v. Brookover, supra, 124 Ariz. at 42, 601 P.2d at 1326. In arriving at a just result, the court must carefully consider all the “compassionate or mitigating factors stemming from the _@iverse frailties of humankind." Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) (judgment of the Coux~ and opinion of Stewart, Powell, and > Pn | © 6 Stevens, J.J.). In some cases the mitigating circumstances are found to outweigh the aggravating factors, and the defendant is spared the death sentence. For example in State v. Brookover, supra, defendant's impaired capacity to appreciate the wrong- fulness of his conduct, caused by a medical condition (a brain lesion of a type frequently producing anti-social behavior), outweighed a prior conviction of a drug offense. 124 Ariz. at 41-42, 601 P.2d at 1325-26. The extreme youth of an offender can also be a compelling mitigating circumstance, as demonstrated recently in State v. Valencia, 132 Ariz. 248, 645 P.2d 239 (1982). There, the defendant‘’s prior convictions arising from a previous violent incident were outweighed by the fact that defendant was only sixteen years old at the time of each crime. We cited the United States Supreme Court in Eddings v. Oklahoma, which stated “chronological age of a minor is itself a relevant mitigating factor of great weight." U.S. , » 102 S.Ct. 869, 877, 71 L.Ed.2d 1, 12 (1982). 132 Ariz. at 250-51, 645 P.2d at 241-42. In some cases the combined weight of a number of miti- gating factors outweighs the aggravation. For example, in State v. Watson, 129 Ariz. 60, 63-64, 628 P.2d 943, 946-47 (1981), the facts that the murder occurred as the result of an unexpected shootout with the robbery victim in which the victim fired first, that defendant was twenty one years old at the time of the crime, and that there was evidence defendant had done a great deal of genuine suul searching after the crime, had been a model prisoner while going through the appellate process, had set new goals for himself, and attempted to further his education in prison, outweighed his prior conviction for robbery. In other cases, however, the mitigating factors are not “sufficiently substantial" to call for leniency. For instance in State v. Knapp, supra, defendant's lack of prior criminal .. wecord did not outweigh the extreme cruelty of burning his two children to death. 114 Ariz. at 543, 562 P.2d at 716, resentence aff'd 125 Ariz. 503, 504-05, 611 P.2d 90, 91-92 (1979). Similarly in State v. Ortiz, supra, defendant's lack of prior . criminal record did not excuse his heinous and depraved murder, involving a grave risk of death to others, in which he stabbed a woman to death and then made senseless, indiscriminate attempts to stab and burn to death her t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1407%3A1. Public record. Not legal advice.