# Petition — JEFFERS v. ARIZONA (No. 82-6870)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983

## Text

7.

$l Yume 6, 1983

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

NO. JA-6B7O

JIMMIE WAYNE JEFFERS,
Petitioner,
vs.
THE STATE OF ARIZONA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

JAMES W. STUEHRINGER
SCHOTLAND & STUEHRKINGER

177 North Church, Suite 611
Tucson, Arizona 85701

(602) 622-4668

DONALD S. KLEIN

PIMA COUNTY PUBLIC DEFENDER
45 West Pennington

Tucson, Arizona 85701

(602) 791-3300

Attorneys for Petitioner,
JIMMIE WAYNE JEFFERS

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

NO.

JIMMIE WAYNE JEFFERS,
Petitioner,
vs.
THE STATE OF ARIZONA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

JAMES W. STUEHRINGER
SCHOTLAND & STUEHRINGER

177 North Church, Suite 611
Tucson, Arizona 85701

(602) 622-4668

DONALD S. KLEIN

PIMA COUNTY PUBLIC DEFENDER
45 West Pennington

Tucson, Arizona 85701

(602) 791-3300

Attorneys for Petitioner,
JIMMIE WAYNE JEFFERS

QUESTIONS PRESENTED FOR REVIEW

i. Whether the Arizona Supreme Court may consti-
tutionally sustain Petitioner's capital sentence, ab-
sent a remand for resentencing, where on appeal it
fully reverses one of the statutory aggravating circum-
stances relied upon by the trial judge and substan-

tially modifies the other.

Zs Whether the Arizona Supreme Court's dis junc-
tive interpretation of the statutory aggravating cir-
cumstance “especially heinous, cruel, or depraved" in
Petitioner's case implies a construction so broad that
it cannot be viewed as a meaningful limitation on
sentencer discretion as required by the Eighth and

Fourteenth Amendments.

Js Whether the warrantless seizures of Petition-
er's written communications, while he was a pretrial
‘ detainee and several months prior to the murder, vio-
lates Petitioner's Fourth and Fourteenth Amendment
rights where such of* Alice Sh nea hd ae

Stone v. Powell,
435 U.S. 465 (1976).

Street v. New York,

Stromberg v. California,
> 1S OM ieee tn GS RN Coe Ie a ee ee |”

Thomas v. Collins
Vk i B 29 (1945).

Thomas v. State,
384

, a ve
404 A.2d 157 (Md--1979).

-vi-

31

United States v. Hinckle
672 F.2d II5 (.c. Cir ““T982),.

United States v. saya ge.

1973),

cert.

United States v. Vallez,
653 F.2d 403 (oth Cir

Zant v. Stephens,
af S. 152 aa Ct.

on remand, 297 S.E.2d 1 (Ga.
reh’s. in the Supreme Court pending.

“denied, Ais U. 5. “932 (1974),

1981)

1856 (1982),
1982),

Constitutional

Jay. oes 20
31, 28
34

S, &2, 13, 29

Provisions and Statutes

A.R.S. Sec. 13-703
(formerly A.R.S. Sec.

A.R.S. Sec, 13-703(F) (3)
13-703(F) (6)

28 U.S.C. Sec. 1257(3)

A.R.S. Sec.

United States Constitution,

Amendment VIII

United States Constitution,

Amendment IV .

United States Constitution,

Amendment XIV.

13-454),

-vii-

3, 4
5
23; 26,26, 29
2
%, &3, 33, 36
b7y 30; 290-6

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

NO.

JIMMIE WAYNE JEFFERS,
Petitioner,
vs.
THE STATE OF ARIZONA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

ARIZONA SUPREME COURT

Petitioner prays that a Writ of Certiorari issue
to review the judgment of the Supreme Court of Arizona

entered on January 24, 1983.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Arizona is
reported at Ariz. _, __ P.2d_s (1983), filed Jan. 24,

1983, reproduced in Appendix A.

JURISDICTION

The final judgment of the Supreme Court of

wie

Arizona was entered on January 24, 1983, and is set
out in Appendix A hereto. A timely motion for rehear-
ing was denied on April 5, 1983. The Arizona Supreme
Court's order denying rehearing is set out in Appendix
B. This Petition for Certiorari has been filed within
sixty (60) days of the Arizona Supreme Court's denial
of a Motion for Rehearing. Thus, the jurisdiction of
this Court is properly invoked under 28 U.S.C. Sec.
1257(3), Petitioner having asserted below and assert-
ing here the deprivation of rights secured by the

Constitution of the United States.

QUESTIONS PRESENTED

1% Whether the Arizona Supreme Court may consti-
tutionally sustain Petitioner's capital sentence, ab-
sent a remand for resentencing, where on appeal it
fully reverses one of the statutory aggravating circum-
stances relied upon by the trial judge and substantial-
ly modifies the other.

Be Whether the Arizona Supreme Court's dis junc-
tive interpretation of the statutory aggravating cir-
cumstance "especially heinous, cruel, or depraved" in
Petitioner's case implies a construction so broad that
it cannot be viewed as a meaningful limitation on
sentencer discretion as required by the Eighth and

Fourteenth Amendments.

3. Whether the warrantless seizures of Petition-
er's written communications, while he was a pretrial
detainee and several months prior to the murder, vio-
lates Petitioner's Fourth and Fourteenth Amendment
rights where such official seizures were neither sup-
ported by probable cause, reasonable suspicion or even

the hint of criminal activity.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Fourth, Eighth and Four-
teenth Amendments to the Constitution of the United
States (Appendix C, D, and E respectively) and Section

13-703 of the Arizona Revised Statutes (Appendix F).

STATEMENT OF THE CASE

This is a petition for writ of certiorari to
review the judgment of the Arizona Supreme Court enter-
ed on January 24, 1983, affirming Petitioner's convic-
tion of first degree murder and sentence to death. !

The facts which give rise to Petitioner's convic-
tion and sentence are set forth in the opinion of the
Arizona Supreme Court. See, Appendix A. What follows
below are those facts essential to a determination of

. Petitioner's present execution date is July 20, 1983

iia

the legal issues raised herein.

The instant prosecution arises out of the murder
of PENELOPE CHENEY in October of 1976. Petitioner and
MS. CHENEY had been lovers and lived with one another
for several years. To a large degree their relation-
ship centered around their mutual use of heroin. They
were both addicts.

On February 9, 1978, Petitioner was convicted by
a jury sitting in Tucson, Arizona, of first degree
murder. Thereafter, on April 14, 1978, in accordance
with the bifurcated procedures set forth in A.R.S.
Sec. 13-454 (now Sec. 13-703), Petitioner was sentenc-
ed to death.

The trial court judge followed the procedures set
forth in the Arizona death penalty statute. The stat-
ute wrequires a separate sentencing trial before the
trial judge. The court was required under the then
existing statute to return a special verdict setting
forth its findings as to the existence or nonexistence
of statutorily listed aggravating and mitigating cir-
cumstances. The statute called for the court to impose
a sentence of death if the trial judge had found one
Or more aggravating circumstances and that there were
no mitigating circumstances sufficiently substantial
to call for leniency.

The trial judge at Petitioner's first sentencing

wien

trial found the existence of two aggravating circum-

stances as follows:
” 3. In the commission of the
offense the defendant knowingly
created a grave risk of death to
another person or persons in addi-
tion to the victim of the offense.

6. The defendant committed

the offense in an especially hei-
nous, cruel, or depraved manner."
A.R.S. Sec. 13-703(F)(3)(6)."

The trial judge rejected and refused to find any
of the other listed aggravating circumstances’ set
forth in the statute. The judge also found no mitigat-
ing circumstances sufficiently substantial to call for
leniency and thus imposed the penalty of death.

Thereafter, on October 23, 1979, while Petition-
er's appeal was still pending before the Arizona
Supreme Court, that court remanded the capital sentenc-
ing aspects of the case to the trial court judge for a
resentencing (‘Appendix G). This remand for a _ second

sentencing was prompted by this Court's decision in

Locket v. Ohio, 438 U.S. 586 1978). See also, State

v. Watson, 120 Ariz. 44 (1978), cert. denied, 440 U.S.

924 (1979).

The resentencing hearing was conducted before the
same judge who had presided over the first sentencing
trial and was held on June 20th and July 10th of 1980.

At the conclusion of the July 10th hearing, the trial

judge again found the existence of the same two aggra-
vating circumstances as set forth above. The trial
judge further found no mitigating circumstances suffi-
ciently substantial to call for leniency and thus
reiterated his sentence of death upon Petitioner.

At this second sentencing, Petitioner presented
mitigation evidence pertaining to his substantial
heroin-induced intoxication at the time of the offense
as well as his provocative love/hate relationship with
the deceased.” Furthermore, the defense presented the
testimony of a psychiatrist, Dr. David Gurland, of
Tucson, who had known Petitioner as well as the deceas-
ed for several years and was familiar with their
relationship. Dr. Gurland stressed that Petitioner's
intoxicated condition at the time of the offense coupl-
ed with his provocative relationship with MS. CHENEY
had "markedly impaired" his ability to conform his
conduct to societal norms and standards.

Following this resentencing, Petitioner's appeal
from his conviction and sentence was reinstated with

the Arizona Supreme Court. On appeal, that court set

aside the trial court's finding regarding the "grave
“ At the time of trial the jury was instructed on
voluntary manslaughter as a result of Petitioner's
intoxication and his provocative relationship with ™

CHENEY.

risk of death to another person" aggravating circum-
stance. As to said aggravating circumstance, the court
ruled that insufficient facts existed to fit Petition-
er's conduct within the statute and that the trial
court judge had misapplied it to Petitioner's case.

The Arizona Supreme Court further ruled that the
trial judge had committed error in its findings regard-
ing the "especially heinous, cruel, or depraved" ag-
gravating circumstance. Specifically, the court set
aside that portion of the trial court's order pertain-
ing to the finding of "cruelty" for the reason that
the record clearly revealed that the deceased experi-
enced no pain or torture. In fact, the deceased had
been unconscious at the time of the murder.

Regarding the remaining components of said statu-
tory aggravating circumstance, "heinous and depraved",
the Arizona Supreme Court stressed that the trial
judge had based its ruling upon acts of Petitioner
which had occurred substantially after the deceased's
demise. On further review of this finding, the court

refused to analyze the statutory aggravating circum-

stance in such terms. Instead, the Arizona Supreme
Court advanced a new theory tor a finding that the
aguwravating circumstance applied to Petitioner's case.

In short, that court made a de nov finding ot

“heinous and depraved by iewing events immediately

surrounding the murder. Specifically, the Arizona
Supreme Court held that Petitioner's acts of "gratui-
tous violence'' to the corpse by slapping it across the
face several times in conjunction with his verbal
expressions of hatred towards his former lover, (e.g.,
"a bitch and a dirty snitch"), were sufficient to
support that court's determination of "heinous and
depraved".

Following the Arizona Supreme Court's opinion
herein, Petitioner, in both a motion for rehearing as
well as in a separate request for additional briefs
and oral argument (Appendix H), urged the Arizona
Supreme Court to remand Petitioner's case for a resen-
tencing. Petitioner's request in this regard was pre-

mised upon this Court's opinion in Zant v. Stephens,

U.S. _, 102 S.Ct. 1856 (1982). These motions were
denied (Appendix I).

In addition to the foregoing facts which are
pertinent to the capital aspect of Petitioner's case,
there is also a Fourth Amendment claim advanced here-

tn. This claim deals with a warrantless seizure by

jail authorities of Petitioner's written communica-
tions while he was a pretrial detainee in the local
Tucson jail. These seizures occurred several months

prior to the murder in question and while Petitioner

was detained in jail on drug-related charges. The
communication seized was a note authored by Petitioner
and intended for another inmate within the jail, the
contents of which were highly incriminatory as to the
eventual murder of PENELOPE CHENEY.

At the time of the seizure in question, there was
no established policy in the jail prohibiting the
passage of such notes and in fact detention officers
frequently served as messengers. There is no indica-
tion that the detention officers ever opened or read
such communications. The testimony further revealed
that at the time of the questioned seizure, jail
authorities had neither probable cause, reasonable sus-
picion, nor even the slightest hint of criminal activ-
itv on the part of Petitioner to support the ques-
tioned seizure.

This Fourth Amendment issue was an issue of first
impression within Arizona although it had been address-
ed by numerous state and federal courts across the

country. The Arizona Supreme Court rejected Petition-

er's Fourth Amendment claim and in so doing ruled
contrary to well established caselaw from the Ninth
Circuit Federal Court of Appeals.

With appeal t the Arizona Supreme Court having

been unsuccessful, Petitioner has now sought a writ of

certiorari from this Honorable Court.

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

Petitioner raised the issue regarding the Arizona
Supreme Court's disjunctive, and thus unconstitutional -
ly overbroad, interpretation of the "heinous, cruel,
or depraved" aggravating circumstance in his Brief on
appeal from his conviction and sentence. Also raised
at that time was the Fourth Amendment claim.

The remaining issue presented herein, which con-
cerns whether the Arizona Supreme Court can properly
sustain a capital sentence where it has reversed one
of the statutory aggravating circumstances and substan-
tially modified another, was raised for the first time
by Petitioner in his motion for rehearing following
the Arizona Supreme Court's decision. Naturally, this
issue could not have been raised prior to that time
for Petitioner was obviously unaware of what treatment
the Arizona Supreme Court was going to give to the
trial judge's finding regarding aggravating circum-
stances.

The Arizona Supreme Court's judgment of January
6, 1983, together with its denial of the motion for

rehearing dated April 5, 1983, clearly rejected Peti-

-10-

tioner's claims now raised herein.

REASONS FOR GRANTING THE WRIT

1. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE ARIZONA SUPREME COURT MAY CONSTITU-
TIONALLY SUSTAIN PETITIONER'S CAPITAL SENTENCE,
ABSENT A REMAND FOR RESENTENCING, WHERE ON APPEAL
IT REVERSES ONE OF THE STATUTORY AGGRAVATING CIR-
CUMSTANCES AND SUBSTANTIALLY MODIFIES THE OTHER.

A. Newly Adopted Arizona Procedure Mandates A
Resentencing In Petitioner's Case And Calls
For This Court To Grant The Writ.

As set forth above, the Arizona Supreme Court's
review of Petitioner's death sentence revealed that of
the two aggravating circumstances found by the trial
judge one of them was entirely incorrect (‘grave risk
of death to another). As to the remaining aggravating
circumstance (heinous, cruel, or depraved) the Arizona
Supreme Court further held that the trial judge had
substantially misapplied this section by its erroneous
finding of "cruelty" and by its insistant focus upon
acts of the Petitioner occurring substantially after
the murder.

Notwithstanding the Arizona Supreme Court's find-
ing of error as to the trial court's interpretation of
the death penalty statute, that court thereafter den-
ied Petitioner's motion for rehearing and request for

supplemental briefs in which the remand issue was

atts

raised. In making this request, Petitioner relied upon

Zant_v. Stephens, __U.S.__, 102 S.Ct. 1856 (1982), on

remand, 297 S.E.2d 1 (Ga. 1982), reh'g. in the Supreme

Court pending.

However, after rejecting the Zant remand in Peti-
tioner's case, the Arizona Supreme Court did a total
“about face'’ two weeks later regarding this same issue

in the case of State v. Gillies, pee SS aa No. 5424

(April 19, 1983). In Gillies, the court, on facts
virtually identical to Petitioner's, ordered a remand
for resentencing citing Zant as authority for such a
procedure. See, copy of Gillies supplemental opinion
found at Appendix J as well as relevant portions of
the Arizona Supreme Court's original opinion in
Gillies which had upheld the death penalty, at Appen-
dix K.

Thus, at the outset it now appears that the
Arizona Supreme Court has accepted, as part of its
construction of the Arizona capital sentencing scheme,
the rationale advanced by several of the justices of
this Court in Zant. Yet, why that court rejected the
remand procedure in the instant case, despite an ex-
press request for a resentencing, remains unclear.
Because Petitioner's life is clearly at stake and
because any number of Arizona capital defendants, both

now and in the future, depend upon a definitive pro-

ai 9a

nouncement from this Court regarding the constitution-
al necessity of a remand, this Court should grant
certiorari herein. |

Surely, the well established teachings of this

Court since Furman v. Georgia, 408 U.S. 238 (1972)

call for uniformity in the application of capital
sentencing statutes so as to insure against the dis-
criminatory and arbitrary imposition of the ultimate
penalty. In order to carry out such dictates, this

Court should grant certiorari in this case.

B. This Court's Well Established Eighth Amend-
ment Principles Require A Reversal Of Peti-
tioner's Death Sentence.

The issue of whether a resentencing is constitu-
tionally necessary under the facts presented by the
case at bar has, in analogous situations, been thor-
oughly briefed in at least two cases presently pending

before this Court. Zant v. Stephens, supra; and

Barclay vs. Florida, Uses , No. 81-6908, cert.

granted (Nov. 8, 1982). Consequently, Petitioner will
not reiterate in full detail all of the arguments so
ably set forth in those cases but, instead, will
simply summarize same. One of the grounds for a remand
finds support in this Court's Eighth Amendment juris-

prudence.

o13—

In Furman _v. Georgia, supra, after "focusing on

the procedures by which convicted defendants were se-
lected for the death penalty," this Court “concluded
that the statutes before it . . . were constitutional-

ly invalid.” Gregg v. Georgia, 428 U.S. 153, 179

(1976). The procedural shortcoming identified in those
pre-Furman death penalty statutes was that their lack
of guidance to the sentencing authority "created a
substantial risk that (the death penalty) . . . would

"

be inflicted in an arbitrary and capricious manner.

Gregg v. Georgia, supra, 428 U.S. at 188.

In what has now become a well documented history,
the legislative response by states across the country
to the Furman objections to capital sentencing was to
adopt statutes which clearly specified ". . . the
factors to be weighed and the procedures to be follow-

ed in deciding when to impose a capital sentence.'

Gregg v. Georgia, supra, 428 U.S. at 180. This legisla-

tive response abandoned unfettered sentencing discre-

tion in favor of objective, legislatively defined ag-

gravating circumstances designed to guide and focus
sentencing determinations. This Court ultimately up
held as constitutional such legislative responses in a
series of post-Furman cases. Jurek v. Texas, 428 U.
262 1976); Proffitt v. Florida, 428 U.S. 262 197¢

and Gregg v. Georgia, supra.

With the foregoing Eighth Amendment principles in
mind, the unique problems posed by Petitioner's sen-
tencing, and the Arizona Supreme Court's review of it,
demonstrate that his capital sentence violates the
prescription against cruel and unusual punishment. Sev-
eral reasons support such a conclusion.

First, Petitioner's sentencing judge relied sole-
ly upon two aggravating circumstances. We now know
that that sentencing judge erred fully as to one such
circumstance (‘grave risk of death) and certainly sub-
stantially as to the other ‘heinous, cruel, and deprav-
ed). Thus, it is clearly probable that the sentencing
authority's discretion was improperly channeled inso-
far as it did not rely upon a correct interpretation
of statutory aggravating circumstances.

To be sure, no one can retrospectively determine
the precise impact of this misapplication of aggravat-
ing circumstances upon the sentencing judge's decision
in Petitioner's case. However, under such) circu

stances this Court's reasoning in Gardner v. Florida,

530 U.S. 349, 359 (1977) seems particularly apt

War) 3 s4 88. te. $aportent ¢t Use

Statutory aneravatl ing ircun
stances in the sentencing = pri
cess, we must assume that in some
cases it will be decisive in the

sentencer's choice between a
lite sentence and a death sen

tence.

The risk that the sentencing judge's improper
application and consideration of aggravating circum-
stances was a "decisive" factor in his imposition of
the death sentence upon Petitioner requires that his
capital sentence be set aside. Surely, the trial judge
in Petitioner's case was more prone to impose a capi-
tal sentence based upon his erroneous conclusion that
two aggravating circumstances existed. Furthermore,
the trial court's erroneous finding of two aggravating
circumstances undoubtedly made more likely the con-
clusion that Petitioner's mitigating evidence was out-
weighed,

Consequently, a remand for resentencing is neces-
sary. Otherwise, it would flaunt the Constitution to
affirm Petitioner's death sentence without first re-
quiring a remand ". . . to remove anv legitimate basis
for finding ambiguity concerning the factors actually

considered by the trial court.’ Eddings v. Oklahoma,

455 U.S. 104, 119 (1982) (O'Connor, J., concurring).
The second constitutional infirmity, from = an
Eighth Amendment standpoint, with Petitioner's sen
tence arises out of the Arizona Supreme Court's alleg
ed review of same. This Court has stressed that appel
late review of capital sentencing ‘is necessary to
insure against the arbitrary and discriminatory impos!

tion of the ultimate penalty. However, in the instant

case, the Arizona Supreme Court, after virtually set-
ting aside the entirety of the trial court's justifica-
tion for finding of aggravating circumstances, then
simply de novo imposed a sentence of death under a
wholly new theory.

Such an approach, under the guise of appellate
review, goes too far! In fact, such an approach surely
travels the road to precisely what this Court's Eighth
Amendment teachings guard against, that being the arbi-
trary and discriminatory imposition of the death penal -
ty.

The Fitth Circuit Federal Court of Appeals dealt

with a similar issue in the case of Henry v. Wain-

wright, 661 F.2d 56 (5th Cir. 1981) wherein it stress-

ed:

= Guarding against the = arbi-
trary and discriminatory imposi-
tion of the death penalty must not
become simply a guessing game play-
ed by reviewing court in which it
tries to discern whether the im-
proper. « . aggravating factors
exerted a decisive influence on
the sentencing determination. The
guarantee against cruel and unusu
al punishment demands more." 661
at 59-60,

The propriety of the Arizona Supreme Court's re-
View of Petitioner's capital sentence has also been
addressed in an analogous circumstance by the Eleventh

Circuit’ Federal Court of Appeals in the case of

Proffite v. Wainwright, 685 F.2d 1227 (ith Cir.

1982). There, the Eleventh Circuit stressed:

- We agree that the rational ap-
pellate review of capital sentenc-
ing decisions contemplated by
Furman and its progeny requires
more than mere speculation or con-
jecture as to what the sentencing
tribunal would have decided had it
correctly applied the law. Such
post hoc justification of a sen-
tencing decision, which depends on
a rationale for imposing death dis-
tinct from that relied on by the
sentencer, cannot fulfill the ap-

pellate court's constitutional
responsibilities." 685 F.2d at
1269,

So, too, where the Arizona Supreme Court has
affirmed Petitioner's death sentence under a rationale
". . « distinct from that relied on by the sentencer .
» +", then rational appellate review has been cast to
the winds. In essence, then, such an appellate review
becomes arbitrary and capricous and runs afoul of the
prohibition against cruel and unusual punishment em-
bodied in the Eighth Amendment.

In conclusion, this Court should grant certiorari
in the instant case to correct: first, the probability
that the sentencing authority's discretion was improp-
erly channeled insofar as its erroneous reliance upon
the two aggravating circumstances found; and, second-
lv, to constrain the type of review authored by the

Arizona Supreme Court which, under the guise of ration-

=) SS

al appellate review, adopted a theory for imposing
death distinct from that relied on by the trial court
judge. These concerns, as _ reflected by Zant and
Barclay already pending before this Court, merit the
granting of certiorari herein.

C. Notions Of Fundamental Fairness Compel The

Vacation Of Petitioner's Death Sentence.

Although Eighth Amendment principles suffice to
require the invalidation of Petitioner's capital sen-
tence, those principles are firmly bolstered by Four-
teenth Amendment due process concepts. This alterna-
tive due process argument has essentially served as a
parallel ground urged in both Zant and Barclay. As
such, Petitioner herein will merely touch upon the
constitutional underpinnings of such an argument as
well as point out the unique circumstances presented
by the case at bar that mandate its application.

The trial judge's sentencing verdict in Petition-
er's case was clearly based upon evidence insufficient
for a finding beyond a reasonable doubt as to one of
the aggravating circumstances (‘grave risk of death)
and certainly most of the remaining aggravating circum-
stance (heinous, cruel, or depraved). Consequently,
the trial court's sentencing verdict was just as uncon-

stitutional as one based on a facially unconstitution-

aie.

al statute. Jackson v. Virginia, 443 U.S. 307 (i979),

From this it follows that Petitioner's capital
sentence must be set aside as long as the possibility
exists that the sentencing authority could have based
its sentencing verdict on said unconstitutional factor
even though there were other constitutional considera-
tions which he may otherwise have employed. Stromberg

vy, California, 283 U.S. 359 (1931); Street v. .New

York, 394 U.S. 576 (1969); and Bachellar v. Maryland,

397 U.S. 564 (1970).

The Stromberg rule, in essence, creates a consti-
tutional due process requirement that a general ver-
dict or judgment resting ambiguously upon a mixture of
constitutional and unconstitutional factors simply
must be set aside because of the inability of a
reviewing court to discern that the unconstitutional
factor did not enter into the decision makirg process.
This rule applies to general judgments by judges, as
in Petitioner's case, as well as to general verdicts

by juries. Thomas v. Collins, 323 U.S. 516, 528-29

(1945),

Consequently, because the sentencing verdict in
Petitioner's case is hinged upon unconstitutional find-
ings ‘i.e., improper finding beyond a reasonable doubt
as to aggravating circumstances), then the trial

judge's sentencing verdict must be set aside and the

~20=

instant case remanded for a resentencing.

In addition to the foregoing, Petitioner's case
presents a rather unique due process concern turning
upon not just the trial court's improper findings
regarding aggravating circumstances but, even more of-
fensively, the Arizona Supreme Court's review func-
tion. As has been set forth above, the Arizona Supreme
Court clearly rejected the trial judge's grounds for
the imposition of death. Nevertheless, that court af-
firmed, in virtually a de novo procedure, the ultimate
penalty on a different theory than that advanced in
the court below. Such a procedure itself is fundamen-
tally unfair especially where Petitioner's life is at
stake. This Court has addressed a similar issue in

Presnell v. Georgia, 439 U.S. 14 (1978),

There, the defendant was convicted of rape, kid-
napping with bodily injury, and murder with malice
aforethought. Thereafter, in the penalty phase of said
trial the sentencing authority was instructed that it
could impose the death penalty under any one of three
circumstances. On appeal, the Supreme Court of Georgia
found error in all three interpretations. Neverthe-
less, it upheld the death penalty on the theory that
there was sufficient evidence in the record to justify
a death sentence.

This Court set aside the Presnell capital sen-

tence on due process grounds holding that the defen-
dant was entitled to have the validity of his sentence
appraised by considering the case as it was tried and
as the issues were determined by the trial court. Cf.,

Cole v. Arkansas, 333 U.S. 196, 201-202 (1948).

Likewise, in the case at bar, due process of law
requires that Petitioner not be subjected to the
Arizona Supreme Court's de novo application of the
death penalty under a theory vastly different from
that relied upon by the sentencing authority. It is
simply fundamentally unfair for Petitioner to have the
validity of his sentence appraised or reviewed in such
a manner. Because the Arizona Supreme Court did pre-
cisely this, Petitioner's death sentence must now be
set aside.

In sum, then, notions of due process of law serve
as an alternative ground for a vacation of Petition-
er's death sentence under either of two theories:
first, the Stromberg line of cases requiring that a
general verdict resting upon partially unconstitution-
ally factors must be set aside; and, secondly, the
unique circumstances presented by Petitioner's case
which led the Arizona Supreme Court's to outright
reject the sentencing authority's basis for a capital
sentence and then, in a de novo procedure, apply a

different theory to arrive at the same ultimate re-

«22.

sult. For all of these reasons, this Court should

grant certiorari in the case at bar.

Il. THIS COURT SHOULD GRANT CERTIORARI TO CONSIDER
WHETHER THE ARIZONA SUPREME COURT'S DISJUNCTIVE
INTERPRETATION IN PETITIONER'S CASE OF AGGRAVAT-
ING CIRCUMSTANCE "ESPECIALLY HEINOUS, CRUEL, OR
DEPRAVED"! IMPLIES A CONSTRUCTION SO BROAD THAT IT
CANNOT BE VIEWED AS A MEANINGFUL LIMITATION ON
SENTENCER DISCRETION AND THUS VIOLATES THE EIGHTH
AND FOURTEENTH AMENDMENTS.

A.R.S. Sec. 13-703(F)(6) establishes as an aggra-
vating circumstance the following: "The defendant com-
mitted the offense in an especially heinous, cruel or
depraved manner." The Arizona Supreme Court's construc-
tion of said aggravating circumstance has required
that it be read literally in the "disjunctive". State
v. Clark, 126 Ariz. 428, 436 (1980). Thus, the penalty
of death is required where the sentencing authority
finds the offense to be either especially heinous, or
cruel, or depraved.

In Petitioner's case, the Arizona Supreme Court
reversed the trial judge's finding regarding the ele-
ment of "cruelty" ruling that there was simply no
evidence that the victim suffered any pain or suffer-
ing. Yet, in the face of this ruling, the Arizona

Supreme Court then went on to analyze the remaining

components of (F)(6), "heinous or depraved," finding

o2%

that those components existed as an aggravating circum-
stance. It is this finding that serves as the sole
predicate for Petitioner's sentence of death.

The Arizona Supreme Court's disjunctive interpre-
tation of section (F)(6), which calls for a capital
sentence upon a finding of depravity, is constitution-
ally infirm as being overly broad and thus it cannot
serve to support Petitioner's capital sentence. This
Court should grant certiorari to correct such a con-
struction for the reason that "any first degree murder

'

case arguably involves depravity of mind.'

Gregg vv.
Georgia, supra, 425 U.S. at 201.

The Arizona court's application of the questioned
aggravating circumstance in Petitioner's case does not
create a "meaningful basis for distinguishing the. .
- cases in which it (death) is imposed from. . . the

many cases in which is it not." Lockett v. Ohio,

supra, 438 U.S. at 601. Because Arizona makes excep-
tionally heavy use of capital punishment and because
section (F)(6) is frequently utilized to achieve such
a result, the issue presented is a significant one and
manifestly calls for review by this Court.

This Court dealt with a similar issue in the case

of Godfrey v. Georgia, 446 U.S. 420 (1980). Under

review in Godfrey was an aggravating circumstance with-
_--+----oOo

in the Georgia death penalty statutory scheme phrased
as follows: "outrageously or wantonly vile, horrible
or inhuman."

The plurality opinion in Godfrey conceded that
the Georgia Supreme Court had, in its earlier cases of

Harris v. State, 230 S.E.2d 1. (Ga. 1976): and Biave a
PF ee FS Ce
DONALD S. KLEIN
PIMA COUNTY PUBLIC DEFENDER
45 West Pennington
Tucson, Arizona 85701

ATTORNEYS FOR PETITIONER,
JIMMIE WAYNE JEFFERS

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies of the
foregoing Petition For Writ Of Certiorari To The
Arizona Supreme Court have been served this 3rd day of
June, 1953, by deposit in the United States Mails,
prepaid, to:

ROBERT K. CORBIN
Attorney General

159 State Capitol Building
Phoenix, Arizona 85007

MES bite a NGER,
for Petitioner, JIMMIE WA¥®
JEFFERS

$6

la

Appendix A
kf RECEIVED
JAN 26 1983
IN THE SUPREME COURT OF THE STATE OF ARIZONA
En Banc
STATE OF ARIZONA, )
)
Appellee, FILED
vs. ) No. 4253 JAN 2 4 1933
) bs sn til. Godeies
JIMMIE WAYNE JEFFERS, gy CHERR SUPREE Count
Appellant. ;

Appeal from the Superior Court of Pima County
The Honorable Ben C. Birdsall, Judge
Cause No. A-31934
AFFIRMED

Stephen D, Neely, Pima County Attorney Tucson
by: D. Jesse Smith, Chief Deputy County Attorney
Michael Pearce (Law Student specially admitted under
Rule 28(e), Rules of the Supreme Court of Arizona)
Attorneys for Appellee

Richard $. Oseran, Pima County Public Defender Tucson
by: Donald S. Klein
Attorneys for Appellant

Schotland & Stuehringer Tucson
by: James W. Stuehringer
Attorneys for Appellant

Frank P. Leto Tucson
Attorney for Appellant

HOLOHAN, Chief Justice

2a

Appellant, Jimmie Wayne Jeffers, was found guiisy oy o jury
of first degree murder. Following an aggravation/mitication hearing,
Jeffers was sentenced to death. He now appeals both the conviction
and the sentence. We have jurisdiction pursuant to A.R.S. § 13-4031.
The judgment of conviction and the sentence are affirmed.

The evidence presented at trial shows that on October 8, 1976,
Jeffers was released from jail on an appeal bond following convictions
of crimes unrelated to the instant appeal. About a week later he met
Doris Van Der Veer at a party given by mutual friends. For the nexc
several weeks Doris lived with Jeffers and became his constant companion.

Doris and Jeffers registered at the Linda Vista Motel in Tucson
on October 18, 1976. Jeffers had mentioned his ex-girlfriend Penelope
Cheney (Penny) to Doris several times. Doris delivered a note, which
Jeffers wrote, inviting Penny to the motel where Jeffers was to provide
her with some heroin.

On the day of the murder Jeffers told Doris that Penny was coming
over and they wished to be alone. They were going to discuss getting
back together. When Penny arrived, Jeffers introduced her to Doris
who then excused herself. Doris went to the motel's pool area and
sat reading for about an hour and a half when it began to rain. Doris
then went to her car and sat inside listening to her CB radio for
about half an hour. She then returned to the motel room and knocked
on the door. Jeffers admitted her, pointed a gun at her and in-

structed her to sit in a chair and be quiet.

Upon entering the motel room, Doris saw Penny lying unconscious
on the bed. Jeffers injected a fluid into Penny's hand. He began
to swear at Penny and said, "I have given her enough **** to kill a

horse and this bitch won't die." Doris noticed foam coming from

Penny's mouth, which she recognized from her training as a nurse to

be a sign of heroin overdose. Doris checked Penny's condition and,

determined that she was still alive. Doris asked Jeffers if he was

going to help Penny and he responded, “No, I'm going to kill her."
Jeffers then removed the belt from around Penny's waist and

began to choke her with it. He soon discarded the belt and choked ;

her with his bare hands. Doris urged him to stop saying she would

~2-

3a

probably die anyway, to which Jeffers replied, "No, I've seen her
this way before and she's come out of it."

After the strangling Jeffers had Doris take Penny's pulse.
She found no pulse and reported that Penny was dead. Jeffers then
had Doris inject more heroin into Penny and choke her while he took
photographs. Jeffers told Doris he did this to have proof that
she was an accomplice. Jeffers struck Penny's body several times
before Doris helped him put it in the shower stall, where it re-
mained for three days. They then wrapped the body in newspaper and
plastic garbage bags, placed it in a sleeping bag and transported it
to a secluded spot near Sedona. There they buried it in a shallow
grave.

Appellant has raised a number of issues in this challenge
to his conviction and sentence. For clarity the issues have been
considered in the order in which they occurred in the proceedings
in the trial court.

THE JAIL NOTE

Prior to trial, Jeffers moved to suppress tv. documents: a
handwitten note written by him, and a copy of a: lice report
mailed to him while in the Pima County Jail. Af -r a hearing, the
court denied the motion, and the items were admi ced in evidence.
Jeffers contends that the court's failure to sup ress this evidence
violated his first, fourth, and fourteenth amendent rights.

The evidence at the suppression hearing shows that in August,
1976, before the murder in this case, Jeffers was incarcerated in
the Pima County Jail on drug offenses. Jeffers had obtained a
copy of a Pima County Sheriff's Office report which stated that
in June, 1976, Penny Cheney and another woman had given the sheriff's
office information about Jeffers' narcotics connections and his
trading drugs for stolen property. Jeffers had underlined the words
"Penny Chaney [sic] ... furnished the following information" and wrote
beside a list of names on the report, "Patty didn't know any names"
and "Penny was only one [sic] that knew this."

o}-

4a

On August 21, 1976, Jeffers wrote a note (or "kite" as
notes between prisoners are called) to one Bobby Norgard, another
prisoner who was in a cell approximately 30 feet away. Jeffers
testified that he folded the note two or three times, wrote "Bobby"
on the outside, attached a copy of the police report, and asked a
detention officer, Officer Cleburn, to deliver it to Norgard. After
taking the note, Cleburn read it and turned it over to his supervisor.
The note offered Norgard “some quick cash" if when he got out of
jail he would get rid of Penny and "Fat Boy" (identified at trial
as Richard Honton). The note read in part:

Name your price and it will be paid the day after it is
in the papers. I want to do it myself but I am not sure
they will set bond. If they do it will take a couple of
months. I am ina hurry. I don't want her to get out
of town. An 0.D. would be find. Nice & clean.

Jeffers, another prisoner, and Officer Cleburn testified
at the suppression hearing. Their testimony established that
the prisoners in the Pima County Jail frequently exchanged notes
with detention officers serving as messengers. Officers would
usually agree to pass the notes unless they were so busy that it was
inconvenient for them to go to the recipient's cell. Jeffers and
the other prisoner testifi. d that although each had sent numerous
notes, neither one had ever seen any officer open or read the note.

At that time the jail had no formal written policy dealing
with notes between prisoners; however, published jail rules
provided that incoming United States mail was regularly opened to
check for contraband. Jeffers testified that he did not expect
or intend that Officer Cleburn would read the note.

Jeffers contends that the officer's reading his note was
an unreasonable search which infringed his reasonable expecta-
tion of privacy in the note, and therefore concludes that his
fourth amendment rights were violated and the note should have been
suppressed. Prisoners do retain some fourth amendment rights
even though incarcerated. United States v. Lilly, 576 F.2d 1240
(Sth Cir. 1978); Sostre v. Preiser, 519 F.2d 763 (2d Cir. 1975);

Bonner v. Coughlin, 517 F.2d 1311 (7th Cir. 1975). Jeffers argues
that because the jail had no published rules prohibiting note
passing and because previous notes had been delivered intact, he
reasonably expected this note to remain private.

The application of the fourth amendment depends on whether
the person invoking its protection can claim a justifiable, reasonable,
legitimate expectation of privacy that has been invaded by the
challenged governmental action. Smith v. Maryland, 442 U.S. 735,
99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), Katz v. United States, 389 U.S.
347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Hinckley,
672 F.2d 115 (D.C. Cir. 1982).

Prison officials may inspect and examine the communications
of inmates without depriving them of their constitutional rights.
Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, ss L.Ed. 2d
ss «(1974); Denson v. United States, 424 F.2d 329 (10th Cir.
1970), cert. denied, 400 U.S. 844 (1970). When an inmate voluntarily
writes a letter and gives it to a guard for delivery to another
inmate, he cannot reasonably expect the letter to remain private.
State v. Matthews, 217 Kan. 654, 538 P.2d 637 (1975); Thomas v.
State, 39 Md. App. 217, 384 A.2d 772 (1978), aff'd, 285 Md. 458,
404 A.2d 257 (1979), State v. Johnson, 476 S.W.2d 516 (Mo. 1972),
cert. denied, 409 U.S. 859 (1972); Hicks v. State, 480 S.W.2d
357 (Tenn. Cr. App. 1972); State v. Copeland, 15 Wash. App. 374,
549 P.2d 26 (1976). Once prison officials have a right to examine
such messages, no rule requires them to close their eyes to what
they discover therein. State v. McCoy, 270 Or. 340, 527 P.2d
725 (1974).

Appellant contends that the cases which have allowed notes
from prisoners to be used by the state involved instances in which
the prisons had published regulations allowing prison officials
to intercept and read inter-prisoner communications. We observe,
however, that Thomas v. State, supra, is a case in which the prison
had no published rules concerning the inspection of notes passed

6a

between prisoners. The defendant in Thomas sought on Fourth
Amendment principles to suppress the use of the contents of a note
which he, as a pretrial detainee, had sought to have delivered to
a fellow prisoner. The note had been placed in a sealed envelope
and handed to a detention officer for delivery, but the officer
opened the envelope and read the contents.

The Court of Appeals of Maryland in its decision conceded
that it could not say that the defendant knew or should have known
that the envelope would be opened and its contents read. The Mary-
land court reasoned that merely because inmates may retain a degree
of fourth amendment protection with respect to some matters, it
does not necessarily follow that the defendant had a reasonable
expectation of privacy in the contents of the envelope. However,
even assuming that he had some justifiable expectation of privacy
in the note so that the fourth amendment was involved in the search,
the court found that the search was reasonable under the circumstances
and the fourth amendment was not violated. As the court observed:

Although we believe that it would be preferable for
jails ... to inform inmates, by regulation, posted notice
or otherwise, concerning inspection of inmate to inmate
correspondence, nevertheless, whatever privacy expectations
the defendant Thomas may have had regarding the sealed
envelope were outweighed by the legitimate security needs
of the detention center. The absence of a regulation
covering the matter does not, in our judgment, make the
inspection and reading of correspondence from one inmate to
another an unreasonable search under the Fourth Amendment.

ner apie iat 85, w~404 A.2d 257, 263 (1979).

We _ agree with the Maryland court's reasoning) Any jail by

its very nature must be concerned with the security of its inmates

and with the prevention of criminal activities within its confines.
Jeffers also argues that his first amendment rights were

violated, citing Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800,

40 L.Ed.2d 224 (1974); Guajardo v. Estelle, 580 F.2d 748 (5th Cir.

1978); and Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976), for

the proposition that prisoners retain their first amendment rights.
The cited cases deal with the first amendment rights of parties

7a

outside the prisons to receive mail from within the prison.

While First Amendment rights of correspondents with
prisoners may protect against the censoring of inmate

mail, when not necessary to protect legitimate govern-
mental interests, see Procunier v. Martinez, [supra],

this Court has not yet recognized First Amendment rights

of prisoners in this context. [citations omitted] Further-
more, freedom from censorship is not equivalent to freedom
from inspection or perusal.

Wolff v. McDonnell, 418 U.S. 539, 575-76, 94 S.Ct. 2963, 2984,
41 L.Ed.2d 935, __—s——s (1974).

We find no violation of appellant's rights in the state's
use of the note attempted to be passed in the county jail.

EVIDENCE OF ESCAPE

Prior to Jeffers' October, 1976 release from jail on an
appeal bond, he was convicted in state court of receiving stolen
propery. A 12-year prison sentence was imposed. Jeffers was
also convicted on four counts of federal firearm violations for
which he received a 20-year prison sentence. In February, 1977,
Jeffers was arrested and charged with the murder of Penny Cheney.
While awaiting trial on the homicide charge Jeffers was kept in
custody at the Pima County Jail. On September 27, 1977, Jeffers
and his cellmate, Robert Butcher, escaped from jail and remained
at large for approximately 24 hours before their recapture.

Prior to trial in the instant case, appellant's counsel
filed a motion in limine to preclude any reference at trial by
state's witnesses to appellant's escape from the Pima County
Jail. The motion was denied and evidence of the escape was elicited
from Jeffers on cross-examination over objection.

The law is clear that eScape constitutes an exception to the
general rule that evidence of a crime by the accused, entirely
distinct from that for which he is on trial, is neither relevant
nor admissible. State v. White, 101 Ariz. 164, 416 P.2d 597 (1966).
The reason for this exception is that escape is a fact which may
indicate a consciousness of guilt of the underlying offense and

therefore, it is admissible. State v. Wilcynski, 111 Ariz. 533,
534 P.2d 738, cert. denied, 423 U.S. 873, 96 S.Ct. 141 (1975);
State v. White, supra. Appellant argues that because it was
possible that he escaped for reasons other than a consciousness of

guilt of the murder charge, such as to avoid the combined 32-year
prison sentences, the escape did not convey an unequivocal in-
ference of consciousness of guilt. This ambiguity, he argues,
renders the escape irrelevant to the murder charge.

We recognize that authority exists in other jurisdictions
that "the circumstances must be such as to exclude every reasonable
hypothesis except that of the defendant's guilt of the offense
charged," in order for the fact of escape to be admissible at
trial. State v. Crawford, 201 P. 1030 (Utah 1921). See
United States v. Myers, 550 F.2d 1036 (5th Cir. 1977); Damron
v. State, 58 Tex. Crim. 255, 125 S.W. 396 (1910). There is more
recent authority which indicates that evidence of escape may be
introduced in a criminal case, despite multiplicity of pending
charges. Johnson v. State, 312 A.2d 630 (Del. Supr. 1973); State
v. Guinan, 506 S.W.2d 490 (Mo. App. 1974); State v. Hudson, 491
S.W.2d 1 (Mo. App. 1973); Archie v. State, 488 P.2d 622 (Crim.

App. Okla., 1971); Chapple v. State, 528 S.W.2d 62 (Crim. App.
Tex. 1975); State v. Piche, 71 Wash. 2d 583, 430 P.2d 522 (1967),
cert. denied, 390 U.S. 912.

Tne admissibility of evidence of an escape is not determinative
of the weight to be afforded to that fact, and the accused may go
forward with the evidence to explain any alternative reasons he
may have had for the escape. State v. White, 101 Ariz. 164, 416
P.2d 597 (1966). Jeffers did not attempt to explain why he waited
until his incarceration on this offense to flee from the prison
terms imposed rather than run when he was released from jail nearly
a year before, but he was not denied the opportunity to present

an explanation.
We hold that the existence of unserved sentences or unrelated
criminal charges pending at the time of the escape did not render ©

9a

evidence of Jeffers' escape inadmissible. Rather, the existence of
alternative reasons for the escape goes to the weight of the evidence
and not to its admissibility. State v. White, supra; accord, Archie
v. State, supra; State v. Piche, supra. There was no error in the
trial court's admission of evidence of Jeffers' escape from the Pima
County Jail.

JAIL CLOTHING

On the first day that evidence was presented to the jury,
Jeffers appeared in court wearing Pima County Jail clothing.. The
clothing consisted of a short-sleeved blue shirt and dark blue
pants. Jeffers wore civilian clothes throughout the rest of the
lengthy trial.

Jeffers claims that the appearance in jail garb denied him
the right to be presumed innocent, in contravention of the due
process clause of the fourteenth amendment.

A state cannot compel an accused to stand trial before a
jury in identifiable prison clothes. Estelle v. Williams, 425
U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In order to run
afoul of the proscription in Estelle, Jeffers' appearance in court
in jail clothes must have been compelled by the state against his
will. See Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972). Jeffers
does not deny that he was given the opportunity to wear his street
clothes in court and chose not to wear them. Rather, Jeffers claims
that his choice to forego donning street clothing was involuntary
because he was awakened several times during the previous night by
jail personnel. We cannot agree that Jeffers was so tired or sick
that he was unable to make the voluntary election to appear in court
wearing jail clothes. From Jeffers' own testimony we calculate that
he slept well over ten hours. During this time he endured six interrup-
tions, most of which kept him awake only momentarily. These unfortunate
interruptions fall short of coercion capable of overbearing Jeffers'
will. We find no support in the record for the contention that Jeffers'
choice to refuse street clothing was anything but an intentional re-
linquishment of a known right.

-9-

EVIDENCE OF ASSAULT

Appellant Jeffers urges that the evidence of prior bad acts
was introduced to prove his character as a "bad man" in violation
of rule 404(b), Arizona Rules of Evidence. He urges that the prior
assaults were not sufficiently similar to the assault on Doris or
the murder of Penny to show any characteristic method, plan, or scheme,
and he contends that the prejudicial effect far outweighed any
possible relevance this evidence might have. He cites rule 403,
Arizona Rules of Evidence, 17A A.R.S.

The evidence challenged by the defense was presented by Sharon
Galarza, a prosecution witness. She testified that she had received
a grant of immunity from pending criminal charges against her in
return for her testimony against Jeffers. She testified that she
had lived with Jeffers from late 1975 to May 1976 and had met Penny
Cheney during that period. Sharon, Penny, and Jeffers were all using
heroin then. Sharon was arrested for selling heroin in October, 1976,
and apparently released soon afterwards. On November 6, 1976, she had
a telephone conversation with Jeffers in which she told him that she
had thought at first that Penny had been involved in her arrest, but
later found she was mistaken. She testified that Jeffers then told
her, "Well, nobody has to worry about her anymore. She's gone
I killed her .... I just got tired of her ***." He said that he
had proof that Penny had snitched on him. He invited Sharon to his
room at the Thunderbird Motel for some heroin, adding that he was
living with a woman whom he had forced to help him with the killing
and that Sharon should not mention the killing to the woman because
"she wouldn't appreciate if anyone knew." Sharon went to the motel,
saw Jeffers, and met Doris. The next day Jeffers and the woman known
as "Dirty Mary" went to Mexico to buy heroin. The woman stole Jeffers’
money. Sharon telephoned Jeffers the following day, and he invited,
her to the motel for a share of the heroin. When she arrived, Jeffers
and Doris were alone in the room. Jeffers locked the door, pulled
the drapes, and assaulted Sharon, holding a large butcher knife
to her throat and accusing her of ripping him off. He then forced
Sharon to inject herself with a substance which she feared was poison,

-l0-

lla

but was in fact heroin. At one point Sharon managed to catch Doris’
eye and Doris smiled reassuringly, as if to indicate that the drug was
not poisoned. On the day following this incident, Sharon saw Jeffers
assault Roger Valery, accusing him of conspiring with Dirty Mary.
Jeffers threw him onto a bed, held a gun between his eyes, and
threatened to kill him.

Sharon also testified that during the first few days she lived
with Jeffers, he told her of two prior assaults on Penny Cheney when
he thought Penny had stolen some jewelry from him. Once Jeffers tried
to overdose Penny, and once he chased her with an axe, chopped up a
stereo, and chased her out a window.

On cross-examination, the defense attacked Sharon's character by
eliciting testimony that she was a prostitute and a heroin addict
and dealer. Sharon did not report what Jeffers had said and done to
anyone until shortly before she was to go to trial on heroin and
prostitution charges in mid-January 1977. She then told her attorney,
who notified the county attorney's office. The defense questioned
Sharon about why she had not come forward with this information earlier,
implying that she had fabricated the story to avoid prosecution.

On redirect, Sharon testified that she did not inform the authori-
ties immediately because "I just wanted to put it out of my head. I
was scared. I didn't want to think about it." She finally told her
attorney about Jeffers because she heard from a friend that “a white
man with real fuzzy hair" had been looking for her, and "I thought ic
was Mr. Jeffers and it scared me." She related that Jeffers had
beaten and choked her, held a gun to her head, and tried to overdose
her while she lived with him, and that she feared reprisals if he
caught up with her.

The list of “other purposes” in rule 404(b), for which other
crime may be shown, is not exclusive; if evidence is relevant for
any purpose other than that of showing the defendant's criminal
propensities, it is admissible even though ic refers to his prior
bad acts. State v. Tuell, 112 Ariz. 340, 541 P.2d 1142 (1975);

State v. Thompsun, 110 Ariz. 165, 516 P.2d 42 (1973), State v.

-ll-

l2a

Jones, 26 Ariz. App. 68, 546 P.2d 45 (1976); see also United States
v. Barrett, 539 F.2d 244 (lst Cir. 1976). The trial judge must
determine whether the probative value of the disputed evidence is
outweighed by the danger of unfair prejudice; if so, the evidence
should be excluded. United States v. Longoria, 624 F.2d 66 (9th
Cir. 1980); State v. Hays, 17 Ariz. App. 202, 496 P.2d 628 (1972).
The trial judge has considerable discretion in determining whether
to admit evidence of other crimes and need not explain the basis
for the decision to admit such evidence. So long as the decision
is supported by the facts before the court, we will affirm the trial
court's decision unless a clear abuse of discretion appears. State
v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 101 S.Ct. 796
(1980); State v. Aguirre, 130 Ariz. 54, 633 P.2d 1047 (App. 1981).
Evidence which tests, sustains, or impeaches the credibility or

character of a witness is generally admissible. State v. Mosley,

119 Ariz. 393, 581 P.2d 238 (1978); State v. Torres, 27 Ariz. App.
556, 556 P.2d 1159 (1976). In Torres, the defendant threatened the
witness, who then corroborated his false story. The court of appeals
stated that:

{[A]ppellant's prior misconduct explained [the witness']

fear of him which caused her to tell a false story. Under
these circumstances, where the prior misconduct had independent
relevancy for some purpose other than showing a probability
that appellant committed the crime for which he was being
tried, it was properly admitted. Udall, Arizona Law of
Evidence, Sec. 115.

Id. at 559, 556 P.2d at 1162. We believe that the evidence of
Jeffers’ assaults upon Sharon and others explained the fear Doris
and Sharon felt for Jeffers and their reasons for failing to report
the murder at once. The evidence helps counter the defense's
insinuation that Sharon had fabricated the story to gain immunity.

The evidence was relevant for the purpose of bolstering these
witnesses’ credibility, and we find no abuse of discretion by the
trial judge in admitting the evidence despite its prejudicial nature.
The jury was given a proper limiting instruction stating that evidence
of other crimes could not be considered to prove Jeffers’ bad character
or any disposition to commit crimes We find no error in the admission
of this evidence.

= a

13a

PRIOR MURDER ATTEMPT UPON THE VICTIM

Appellant challenges the admission of evidence of what counsel
have styled a prior murder attempt upon the victim, produced at
trial in the form of the victim's hearsay statements. Edith Meck,
manager of the apartments in which Jeffers lived, and Lillian
Ramirez, a nurse at the Tucson Medical Center testified about contacts
they had with the victim, Penny Cheney, approximately 11 months
before her death. Mrs. Meck was permitted to describe to the jury
an incident in which she observed Penny running from the direction of
Jeffers' apartment, screaming for help. Mrs. Meck said Penny was
cut on the hand and had left a trail of blood along the sidewalk
where she ran. When Penny approached Mrs. Meck, she cried out that
Jeffers had "doped her and threw her out the bedroom window." Mrs.
Meck described Penny's condition as "very excited," and said her
speech was difficult to understand. Penny's eves "looked very funny”
and she leaned on Mrs. Meck "as though she couldn't hardly stand up."
Later that day Mrs. Meck observed Jeffers' bedroom window to be broken.

Soon after her encounter with Mrs. Meck, Penny was taken by
ambulance to the Tucson Medical Center Emergency Room. There she
met Nurse Lillian Ramirez who obtained and charted information to
aid the doctor in Penny's diagnosis and treatment. Nurse Ramirez
determined that Penny had sustained injuries to her right hand and
left leg. The nurse testified that Penny was semi-stuporous and
pale, that she had slow respiration, slurred speech, and pinpoint
pupils that did not react to changes in light levels. Nurse Ramirez
asked Penny what happened to her and Penny responded "that she had
been drugged by her boyfriend, that friends were coming to help kill
her and she had jumped [from a window] to get away." Penny refused
to answer the nurse's question about what drug had been given her
saying, "I don't know. I don't want him to get in trouble.” Nurse
Ramirez testified that Penny was eventually diagnosed and treated
with narcan, which is used to counteract the effects of a narcotic

on a patient.

-13-

Appellant makes three separate attacks upon the admission of the
statements of Penny Cheney. First, Jeffers contends the incident
constitutes a prior bad act which is inadmissible under rule 404(b),
Arizona Rules of Evidence, 17A A.R.S. Jeffers also claims the
statements are hearsay, not properly admissible under any exceptions
listed in rule 803. Finally, Jeffers challenges the statements’
admission as a denial of his sixth amendment right to confrontation.

a. PRIOR BAD ACT

Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show that he acted in conformity therewith. It may,
however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.

We have long held that where the existence of premeditation is
in issue, evidence of previous quarrels or difficulties between the
accused and the victim is admissible. Sparks v. State, 19 Ariz. 455,
171 P.1182 (1918); Leonard v. State, 17 Ariz. 293, 151 P.947 (1915).
In Leonard we upheld the admission of evidence of trouble between
the defendant and the victim four years before the homicide there at
issue. Id.

The admissibility of such testimony is not measured by remote-
mess in time. Rather, the length of time is a factor to be considered
by the jury in determining the weight of the evidence. State v.
Moore, 111 Ariz. 355, 529 P.2d 1172 (1974).

Evidence of prior trouble between the victim and the accused

derives its relevance from the fact that the existence of prior

ill will toward the victim not only renders the commission of the
crime more probable, but tends to show the malice, motive or pre-
meditation of the accused Leonard v. State, supra, State v. Denny,.
27 Ariz. App. 354, 555 P.2d 111 (1976)

Evidence of this prior bad act, taken together with the expression
in Jeffers’ intercepted jail note of his desire to kil Penny by

heroin overdose, shows a continuing state of mind from which the
jury could properly infer that Jeffers carried out his desire.
See State v. Moore, supra.

Furthermore, Jeffers professed a deep abiding love for Penny
which would not allow him to cause her any harm. The opening
statement for the defense made several references to this love
Jeffers had for Penny. Thus, evidence of this prior incident would
also be admissible to rebut Jeffers' claim of inability to harm his
loved one. See also, State v. Denny, supra (evidence of defendant's
prior assault on homicide victim admissible to rebut claim of victim's
personal abuse of defendant).

In addition to relevance, admission of prior bad act evidence
requires sufficient indicia of its reliability. State v. Gause,

107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds, 409

U.S. 815 (1972). Im Gause we stated that "[a] bald expression of

fear by a murder victim standing alone does not have sufficient
reliability to be admitted." Id. at 495, 489 P.2d at 834. Penny's
statements need not stand alone in reflecting their reliability to
render Penny's statements admissible. The substance of the statements

is that Penny went through a window somehow because Jeffers drugged
her and threatened her. Her statement was corroborated by her fresh
cuts, and the trail of blood and broken window. That she had been
drugged was corroborated by her demeanor, appearance, and treatment
with narcan. The fact that the doctor's diagnosis and Penny's
refusal to reveal what drug was used because she did not "want to
get [Jeffers] in trouble," lends further reliability, because her
protective attitude toward Jeffers suggests that she did not fabricate
his involvement with her injury.

Jeffers argues that the discrepancy between the statements
as related by the two witnesses regarding whether Penny jumped or ;
was thrown through the window strips the statements of their reliability
and renders them inadmissible. We do not agree. This discrepancy
is minor and has little impact on what makes the incident relevant
to Penny's murder. We hold that the statements are sufficiently
reliable and relevant to be properly admissible for the purposes
previously stated.

offs

l6a

b. HEARSAY

The trial court admitted Penny's statement to Mrs. Meck under
the excited utterance exception to the hearsay rule. Rule 803(2) of
the Rules of Evidence defines excited utterance as "A statement re-
lating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.”
Three requirements must be met for the proper admission of an excited
utterance under this exception to the hearsay rule: (1) there must
have been a startling event, (2) the statement must relate to the
startling event; and (3) the statement must be made spontaneously,
that is, soon enough after the event so as not to give the declarant
time to fabricate. State v. Barnes, 124 Ariz. 586, 606 P.2d 802 (1980);
State v. Woolery, 93 Ariz. 76, 378 P.2d 751 (1963).

Jeffers argues that the statement fails to satisfy two of the
above requirements and was, therefore, improperly admitted. In
that regard, Jeffers claims that the statement related to the un-
reliable perceptions of a declarant under the influence of an intoxica-
ting drug rather than the startling event itself; and secondly, that
the statement lacked the requisite spontaneity.

The law is cl:ar that this court will not reverse the trial
court's ruling under the excited utterance exception to the hearsay
rule absent a clear abuse of discretion. State v. Dale, 113 Ariz.
212, 550 P.2d 83 (1976); State v. Kevil, 111 Ariz. 240, 527 P.2d 285
(1974); State v. Hughes, 120 Ariz. 120, 584 P.2d 584 (App. 1978).

The basis for the exception is that the event produces nervous
excitemeat making fabrication unlikely. State v. Peeler, 126 Ariz.
254, 614 P.2d 335 (App. 1980). Our courts have not attempted to
confine the application of the excited utterance exception solely
to indisputably reliable statements, In Peeler, supra, the exception
was applicable even though evidence was presented that statements é
made by the victim would probably be less reliable during periods of
extreme agitation. Similarly, in State v. Yee, 121 Ariz. 398, 590
P.2d 937 (App. 197°), the declarant's statements were admitted even
though his wife testified that her husband was particularly un- ,
reliable when he became excited and that she distrusted the state-
ments in question. Admission as a hearsay exception is not fore-

-16-

————— NT

17a

closed by the fact that a statement's reliability has been impugned.
Id.

The record leaves no room for doubt that Penny was under the
influence of a narcotic drug at the time she made the statement, "He
drugged me."' Jeffers contends that the fact of intoxication plus the
inconsistency between Penny's two statements establish that the
statements resulted from the drug's effect rather than the excitement
of the startling event. Mrs. Meck testified that despite Penny's
difficulty with her coordination, she appeared to be very excited,
and although she was hard to understand, Penny seemed to know what
she was talking about.

Jeffers would have us declare Penny's statements to be so
inherently unreliable that exclusion is the only cure. This we
decline to do. It is unquestionable that the use of drugs may
have a deleterious effect on one's ability to perceive and communicate.
See State v. Ballesteros, 100 Ariz. 262, “413 P.2d 739 (1966).
Nevertheless, a witness is not rendered incompetent to testify
merely because he was under the influence of drugs at the time of
the incident about which he is testifying or at the time he testifies.
Ballesteros, supra; Wilson v. United States, 232 U.S. 563, 34 S.Ct.
347, ___iL.ED. ____s« (1913) (witness on morphine at time testified).
See, State v. Reyes, 99 Ariz. 257, 408 P.2d 400 (1965) (by implication) ;
State v. Arriola, 99 Ariz. 332, 409 P.2d 37 (1965) (by implication).
The question of reliability here, just like the question of competency,
is within the sound discretion of the trial court. In both instances
the question of credibility remains for submission to the jury.

We find Jeffers' argument that the statement was not made soon
enough after the startling event to possess the requisite spontaneity
to be without merit. Penny ran approximately two blocks from Jeffers'
apartment to Mrs. Meck's office, where she made the statement
in response to Mrs. Meck's question, "What happened?" Penny was
still bleeding from a fresh cut that she presumably incurred during
the startling event of being drugged and going through a window.
Penny remained in Mrs. Meck's office only ten to fifteen minutes before

-l7-

l3a

an ambulance arrived. The totality of the circumstances indicate
that Penny was under the stress and excitement caused by the
startling event when she made the statement. See generally State
v. Barnes, supra; State v. Morrow, 108 Ariz. 108, 493 P.2d 119
(1972); State v. Perry, 116 Ariz. 40, 567 P.2d 786 (App. 1977).
The trial court did not err in admitting it.

The trial court admitted Penny's statement to Nurse Ramirez
under the medical diagnosis exception to the hearsay rule. Jeffers
maintains that this was error.

Rule 803 excepts from the hearsay rule statements made for
purposes of medical diagnosis or treatment. Subsection 4 of the
rule defines such statements. It provides:

Statements made for purposes of medical diagnosis
or treatment and describing medical history, or past or
present symptoms, pain or sensations, or the inception
Or general character of the cause or external source there-
of insofar as reasonably pertinent to diagnosis or treat-
ment.

Arizona's adoption of this rule verbatim from the federal rule
significantly broadened the scope of admissible patient to physican
hearsay statements. Udall and Livermore, Arizona Practice: Law
of Evidence, § 129 (2d ed. 1982) (hereinafter, Udall).

Two important factors derive from the rule's rationale: (1)
whether the declarant's motive is consistent with receiving medical
care; and (2) whether it is reasonable for the physician to rely on
the information in diagnosis or treatment. United States v. Iron
Shell, 633 F.2d 77 (8th Cir. 1980). Thus in Iron Shell, the court
admitted an assault victim's statements to her doctor stating: "It
is important to note that the statements concern what happened
rather than who assaulted her. The former in most cases is pertinent
to diagnosis and treatment while the latter would seldom, if ever,
be sufficiently related." Id. at 84. Accord, United States v. Nick:
604 F.2d 1199 (9th Cir. 1979). The Advisory Committee's Note to
rule 803(4) also makes a point of illustrating that statements as
to fault would not ordinarily qualify under the exception,

In the instant case Nurse Ramirez testified that who administered
the narcotic was not reasonably pertinent to diagnosis or treatment.

19a

Furthermore, Penny's motive to provide information for treatment
must be regarded with suspicion because of her refusal to name the
drug used on her. Penny's statement fails to satisfy either prong
of the test and should not have been admitted into evidence under
the medical diagnosis exception to the hearsay rule.

The state urges other grounds for the statement's admission;
excited utterance, expression of present state of mind, or expression
of fear by a murder victim. We find none of these to except Penny's

statement to Nurse Ramirez from the hearsay rule. First, Penny's
reflective capabilities, as illustrated by her refusal to disclose
what drug was used, remove the statement from the excited utterance
category because the declarant's ability to fabricate is apparent.
Secondly, we perceive no significant difference between an expression
of fear by a murder victim and an expression of state of mind under
rule 803(3). Both exceptions require that the statement show some
state of mind which is relevant to the issues involved in the
criminal proceeding. See State v. Ramirez, 116 Ariz. 259, 569 P.2d
201 (1977); State v. Gause,*107 Ariz. 491, 489 P.2d 830 (1971),
vacated on other grounds, 409 U.S. 815 (1972). Penny's state of
mind at that remote date would be of questionable relevance to

any issues at trial. Thus, admiss:on under the state of mind
exception would not have been proper.

Although we find error in the admission of the second statement,
we conclude that such error was harmless. The statement indicated
that Penny was drugged by Jeffers, its content was the same as
that of the properly admitted statement to Mrs. Meck. This repeti-
tion, although error, was not prejudicial. State v. Woolery, 93
Ariz. 76, 378 P.2d 751 (1963). The second part of the statement
to Nurse Ramirez to the effect that Penny jumped from the window
to get away from friends that were coming to kill her, does not
incriminate Jeffers and is not prejudicial. If anything, the
contradiction between this statement and the first had the potential

to benefit Jeffers' case

c. RIGHT TO CONFRONTATION

Appellant asserts that introduction into evidence of Penny's
hearsay statements denied him the right to confrontation guaranteed
by the sixth amendment and made applicable to the states through
the fourteenth amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct.
1065, 13 L.Ed.2d 923 (1965). A literal reading of the confrontation
clause would require the exclusion of any statement, however relevant,
made by a declarant who was, for any reason, absent from trial. Such
a reading has long been rejected as unintended and too extreme.

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

The primary concern of the confrontation clause is to assure
that the jury has an adequate basis upon which to evaluate the truth
of the statement. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210,

L.Ed.2d (1970). Cross-examination, although preferred,
is not the sole method by which the confrontation clause may be
satisfied. Absent cross-examination, the essential issue is
whether under all of the circumstances, the hearsay statement has
a high degree of reliability. United States v. Nick, 604 F.2d 1199
(9th Cir. 1979).

In sum, when a hearsay declarant is not present for
cross-examination at trial, the Confrontation Clause
normally requires a showing that he is unavailable. Even
then, his statement is admissible jonly if it bears
adequate ' ‘indicia of reliability." Reliability can be
inferred without more in a case where the e e@ evidence fails
within a firmly rooted hearsay exception. In other cases,
the evidence must be excluded, at Teast absent a showing

of particularized guarantees of trustworthiness. (emphasis
added) Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539,
65 L.Ed.2d 597, (1980).

There is little doubt that the excited utterance qualifies as
a firmly rooted hearsay exception, see 6 Wigmore, Evidence § 1746

(Chadbourn rev. 1976), and generally any evidence that falls within :
such an exception would for that reason alone satisfy the re-
liability requirement In addition, much of what Penny stated was

corroborated by independent evidence The appellant's right to

confrontation was not violated

NEGATIVE EVIDENCE

Central to Jeffers' defense was his testimony that he was not
present when Penny Cheney died, but was at or en route from Danny's
Hideaway Bar in South Tucson at the time. In that regard Jeffers
testified as follows. Penny Cheney arrived at the motel room in which
Jeffers and Doris Van Der Veer had been living at approximately 11:00
A.M. on the day she died. At Jeffers' request Doris left immediately
and did not return until between 1:00 and 2:00 that afternoon. The
three of them remained in the motel room for 30 to 45 minutes when
Jeffers left to attempt to purchase some heroin. Jeffers went to
Danny's Hideaway, which is about a 30-minute drive from the motel.
After spending a few hours in the bar, Jeffers met a man who agreed
to help him in the purchase of heroin. He accompanied this man out
of Danny's Hideaway at 5:30 or 6:00 that evening. Upon his return
to the motel room at 7:00 P.M., Jeffers discovered Penny Cheney,
already dead, lying om the bed and Doris Van Der Veer sitting quietly
in a chair nearby. In sum, Jeffers' testimony places his arrival at
Danny's Hideaway no earlier than 2:00 and as late as 3:15 on October
21, 1976.

In order to rebut Jeffers’ testimony, the state called Sharon
Galarza to the stand to testify that she was in Danny's Hideaway on
October 21, 1976 from about 12:30 P.M. to sometime between 2:30 P.M.
and 3:00 P.M. Galarza testified that she knew Jeffers at the time, but
she did not see him at Danny's that day. She testified that she
remembered that day because it was the day she was arrested on a
sale of narcotics charge.

Jeffers challenges the trial court's admission over objection
of Galarza's rebuttal testimony in that it constituted negative
evidence which lacked sufficient foundation to give it probative
value.

The acceptance or rejection of negative evidence is largely
a matter of discretion for the trial court. State v. Kelly, 11]
Ariz. 181, 526 P.2d 720 (1974). The general rule is that negative
evidence to the effect that the witness did not see an event occur

can rise to the leve! of probative value only when supported by

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22a

a sufficient foundation that the witness’ position and attitude
were such that he probably would have seen the event had it
happened. Byars v. Arizona Public Service Co., 24 Ariz. App. 420,
539 P.2d 534 (1975).

Galarza's testimony concerning her observations of October 21,
1976, if believed, establishes that Jeffers was not at Danny's
Hideaway between 12:30 and 2:30 or 3:00 P.M. The testimony in-
dicates that Jeffers was not at the establishment before approxi-
mately 3:00 P.M., and it was admissible for that purpose. The
appellant could have been at the bar at a later hour, and this is
what the defense argued. We find no error in the admission of the
evidence.

EXCLUSION OF CONVERSATION

The defense called as a witness Myron McRoberts, a painter

who had stayed at the Linda Vista Motel the week of the murder.

He testified that on the afternoon of the murder, he saw Doris

and a blonde woman leave the motel together in a dark-colored car.

He said he remembered the day because it was raining so that he
couldn't work, because he and his partner folded their dropcloths
behind the motel contrary to their usual practice, because he

had gone out drinking the night before and was somewhat hungover,

and because he remembered a conversation he had had with Mrs. Wheeler,
the manager of the motel. The state objected to the introduction of
the content of the conversation on hearsay grounds, and the objection
was sustained. The defense offered to prove that Mrs. Wheeler had
told McRoberts, "There's a cute blonde in room 7," and that was one
reason he identified the particular date.

Appellant contends that the statement was admissible non-
hearsay in that the statement was offered not for the truth of the
matter asserted, but to show how McRoberts’ remembered the day in
question. Since the evidence was offered only to prove that the
statement had been made, it was not hearsay. State v. Johnson,

106 Ariz. 539, 479 P.2?d 424 (1971). The trial court should have

allowed the offered testimony

The error by the trial court is not reversible because the
excluded evidence was cumulative. The witness had already described
Several reasons why he remembered the day, and the excluded testimony
mezely added an additional reason for remembering the day.

23a

EXCLUSION OF PRIOR CONSISTENT STATEMENTS

Jeffers contends that certain statements of defense witnesses
were improperly excluded as hearsay. Three statements are involved;
the first was allegedly made by Jeffers to his mother in a telephone
call on November 7, 1976, shortly after the murder, to the effect
that Penny was dead and that she had overdosed. The defense attempted
to introduce this statement through the testimony of Jeffers and of
his mother, but hearsay objections were sustained as to both. The
second and third statements were allegedly made to William Heuisler,
a private investigator, by Myron McRoberts and Dave Birket, respectively,
when he first spoke with them about their recollection of the events
at the motel. In answer to Heuisler's question whether he remembered
anyone from around the motel, McRoberts reportedly stated that he saw
a "good-looking blonde" and Birket said he remembered seeing another
girl there with tattoos. The defense attempted to introduce these
statements through Heuisler's testimony, but the court sustained
hearsay objections.

Jeffers argues that the statements were not hearsay because
they were prior statements consistent with the declarants' testimony
at trial and were offered to rebut express or implied charges of
recent fabrication. Rule 801(d)(1)(B), Rules of Evidence, 17A A.R.S.,
Ray Korte Chevrolet v. Simmons, 117 Ariz. 202, 571 P.2d 699 (App.
1977).

The state points out that the declarants were never impeached
upon the particular matters asserted in the prior statements. Thus,
because the prior statements did not rebut the alleged fabrications
or memory lapses, those statements were not admissible under rule
801(d)(1)(B). See: People v. Mullin, 197 Cal. App.2d 479, 17 Cal.
Rptr. 516 (1961); State v. Fleming, 354 Mo.31, 188 S.W.2d 12 (1945).
Jeffers’ statement that Penny was dead and had overdosed did not
rebut the alleged fabrication that Jeffers had not been involved in
her death. McRoberts' testimony was not attacked on the question of
whether he had ever seen a good-looking blonde around the motel,
nor was Birket's testimony attacked on whether he had eVer seen a
tattooed woman; rather, the challenges were to their recall of the

-23-

tro
appellant's drug
intoxication along with testimony by psychiatrists for appellant
and the state. Dr. Gurland, a defense psychiatrist, testified
that heroin has the effect of calming people down. Other evidence
showed that long-term heroin users like appellant develop a tolerance
to the effects of the drug. Doris Van Der Veer testified that
appellant had not used an excessive amount by appellant's
standards, on the day of the murder. a cas while
appellant was drinking and using narcotics the day of the murder

yp? —|cphere was no credible evidence of any significant impairment of his
a ‘capacity to appreciate the wrongfulness of his conduct or to conform

pe”

-37-

38a

his conduct to the requirements of law. After reviewing the pecord
aie

we agree with the trial court's findings.
As further mitigation appellant contends his stormy love-hate

relationship with the victim raised the classic provocation situation
and the crime was induced by the heat of passion. There is nothing
in the record which indicates there was an argument or that the

crime was induced by heat of passion. Appellant did learn that

the victim may have been an informant against him, but this knowledge
was gained in late July or early August 1976, months before the
October 21 murder. About a week before the killing appellant met
with the victim and discussed the possibility that she had been

an informant against him. There he also was advised that the victim
was now a prostitute and would charge for her sexual favors.
Appellant testified that he accepted the situation and that he was
not mad.

Even were the victim's actions sufficient to constitute adequate
provocation, there was a sufficient lapse of time between the
provocation and the killing for the passions to "cool." See State
v. Ramirez, 116 Ariz. 259, 569 P.2d 201 (1977). The record shows
that the trial court did consider this evidence of possible pro-

vocation and found that appellant may have had reason to be provoked,
that he was under some stress, and may have had motives for killing
the victim, but ° |

The third mitigating factor advanced by appellant is the informa-

tion given to Dr. Gurland, the defense psychiatrist, while appellant
was under the influence of sodium amytal, which according to the
doctor, was consistent with appellant's innocence. While sodium
amytal evidence is not admissible in Arizona courts, see State v.
Thomas, 79 Ariz. 158, 285 P.2d 612 (1955), cert. denied, 350 U.S.
950, 76 S.Ct. 326, 100 L.Ed. 828 (1956), mitigation evidence presented
under Arizona's death penalty statute need not meet the normal
standards for admissibility.

Both Dr. Gurland and Dr. LaWall, the state psychiatrist, agreed
that under certain circumstances a sodium amytal interview can be

-38-

39a

reliable. Both doctors also agreed that it is not a "truth
serum," that persons can lie and fabricate while under the in-
fluence of the drug.

The trial court had this medical testimony before it to
determine appellant's credibility as well as evidence adduced at
trial includi:, © »pellant's own testimony along with appellant's

rior conviction for forgery introduced for impeachment purposes.

“pe record rt considered all the evidence

presented at trial and at the post-trial hearings and found no

mitigating factors sufficiently substantial to call for leniency.

——We have ave carefully reviewed the rec

i
whether ther the factors in mitigation outweigh the aggravating circum-

qtances, nces, State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976),
cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977),

and we find they—do not.

CONSTITUTIONAL ARGUMENTS

First, appellant asks that his death sentence be set aside
because it is disproportionate to the sentence imposed in similar
cases. This is not true. Our analysis in State v. Gretzler, supra,
of the various death penalty cases which have come before this
Court, reveals the similarities in the cases in which the death
penalty was affirmed. As we discussed in the section on aggravating
circumstances, infra, the instant case does have similarities
to other cases where the death penalty was imposed.

Another constitutional attack raised by appellant is that
the Arizona scheme for the imposition of the death penalty is
unconstitutionally vague. We have addressed this issue many times
before with a resolution adverse to appellant. State v. Gretzler,
supra, State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert.
denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979).

The ninth circuit has resolved the issue in a similar manner.
Knapp v. Cardwell, 667 F.2d 1253 (9th Cir. 1982), cert. denied
(51 U.S.L.W. 3407, Nov. 30, 1982).

-39-

40a

Additionally appellant contends that the reimposition of
his death sentence pursuant to State v. Watson, Supra, is an
unconstitutional violation of the following: the due process
clause, the ex post facto clause, the double jeopardy guarantees,
the prohibition against judicially created penalties, and the
guarantee of a republican form of government and a separation
of powers. These issues have each been previously determined,
again, with a resolution adverse to appellant. Knapp v. Cardwell,
supra; State v. Gretzler, supra.

We have reviewed the entire record pursuant to A.R.S. § 13-4035
and found no fundamental error. In our independant determination
we found one aggravating factor - that the offense was committed in
an especially heinous and depraved manner - and no mitigating
factors sufficiently substantial to call for leniency. Judgment
of conviction and sentence are affirmed.

WILLIAM A. HOLOHAN, Chief Justice

CONCURRING :

FRANK X. GORDON, JR., Vice Chief Justice

JACK D. H. HAYS, Justice

JAMES DUKE CAMERON, Justice

STANLEY G. FELDMAN, Justice

~40-

4la

J Appendix B
)
( Sah |
APR 7 1983
Supreme Court
§. ALAN COOK STATE OF ARIZONA ANNA L. CATES
CLERK CHiIGP OLPUTY CLEAR

201-WEST WING
CAPITOL BUILDING
(602) 259.4536

Phoenix 85007
) April 6, 1983
STATE OF ARIZONA, )
) Supreme Court
Appellee, No. 4253
vs. )
) Pima County
JIMMIE WAYNE JEFFERS, ) No. A-31934
)
Appellant. )
)
)
)
)

The following action was taken by the Supreme Court of the State of
Arizona on April 5, 1983 in regard to the above-entitled cause:

"ORDERED: Motion for Rehearing = DENIED."

Copy of Order Affirming Judgment enclosed.

S. ALAN COOK, Clerk

By lire, Ottcloee

eputy Clerk

TO:

ames W. Stuehringer, Esq., Suite 611, Transamerica Building, Tucson,
Arizona 85701

Mr. Frederic J. Dardis, Pima County Public Defender, 45 West Pennington,
Tucson, Arizona 85701

Hon. Robert Kk. Corbin, Attorney General, 1275 West Washington Street,
Phoenix, Arizona 85003

Mr. Stephen D. Neely, Pima County Attorney, 111 West Cen, Tucson,
Arizona 85701 ATTN: D. Jesse Smith

Appendix C

Amenpuirnt 1V [1791]
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizwree shall not be violated, and
no Warrants shall issue, but upon probable cause supported by Oath or af-
irmation, and particularly describing the place to be searched, and the per-
sons or things to be seized,

43a

Appendix D

Amespucnt VIII [1791]

Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.

44a

Appendix E

Amexpéent XIV [1868]

Section 1. All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive an rson of life, libe
witho' roce w, nor deny to any person within its jur
the equal protection of thelaws. EP :

Appendix F

§ 13-703

F. Aggravating circumstances to be considered shall be the follow-
ing:

1. The defendant has been convicted of another offense in the
United States for which under Arizona law a sentence of life impris-
onment or death was imposable.

2. The defendant was previously convicted of a felony in the Unit-
ed States involving the use or threat of violence on another person.

3.\In the commission of the offens&® the defendant knowingly cre-
ated a grave risk of death to another person or persons in addition
to the victim of the offense.

4. The defendant procured the commission of the offense by pay-
ment, or promise of payment, of anything of pecuniary value.

5. The defendant committed the offense as consideration for the
receipt, or in expectation of the receipt, of anything of pecuniary
value.

6. The defendant committed the offense in an especially heinous,
cruel, or depraved manner.

7. The defendant committed the offense while in the custody of the
department of corrections, a law enforcement agency or county or city
jail.

Appendix G

©27.,

Rec'g
(ee Supreme Court

C.teon STATE OF ARIZONA
BC - wes? wind
CAPITOK BUILOING

Phoenix 85007

VEL EC PnOne
268-4836

October 24, 1979

)
STATE OF ARIZONA, z=
y 29 __ Appellee, ) Supreme Court
bag TRE ) No. 4253
. 53 - vs. i )
== )
JME WAYNE JEFFERS, ) Pima County
‘ ) No. A-31934
ae Appellant. :
pa ee )
ag PS ert )
Sie )

The ‘following action was taken by the Supreme Court of the State of

.- Arizona on = October 23, 1979 in regard to the above-entitled cause:

os

"ORDERED: Motion to Stay Appeal pursuant to Rule 31.4, Rules of
Criminal Pescegure = GRANTED.

FURTHER ORDERED: The matter is remanded to the Superior Court of
. Pima County for resentencing pursuant to State v. Watson,
“2120 Ariz 44, 586 P.2d 1253 (1978)."

MARYANN HOPKINS-YOUNG, Clerk

By Kictlen E.Kempley

Deputy Clerk
TO: a4 .
Stephen D. Neely, Pima County Attorney, 111 West Congress, Tucson,
Arizona 85701 Attn: D. Jesse Smith
Hon. Robert K. Corbin, Attorney General, 200 West Wing, State Capitol
Building, Phoenix, Arizona 85007

_®onald S. Klein, Esq., Klein & Klein, 100 North Stone Avenue, Suite 903,

Tucson, Arizona 85701

Frank Leto, Esq., 2302 East Speedway, Suite 108A, Tucson, Arizona 85719

Hon. Ben C. Birdsall, Judge, Pima County Superior Court, Pima County
Courthouse, Tucson, Arizona 85701

James N. Corbett, Clerk, Pima County Superior Court, Pima County Courthouse,
Tucson, Arizona 85701 (Certified Copy)

Jimmie Wayne Jeffers, Arizona State Prison, Box B 38604, Florence,

Arizona 85232 -_ , —

47a

1 Appendix H

SCHOTLAND & STUEHRINGER
ATTORNEYS AT LAW
611 Transamerica BuiLoine
TUCSON, ARIZONA 68701
(602) 622.4668

James W. Stuehringer

Attorneys for Appellant JEFFERS

IN THE SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Supreme Court No. 4253
Appellee,
(Pima Co. No. A-31934)
vs.
MOTION FOR ADDITIONAL
JIMMIE WAYNE JEFFERS, BRIEFS AND ORAL ARGUMENT

Appellant.

~—~S SO eo ie

Appellant, JIMMIE WAYNE JEFFERS, by and through his under-

_ Signed counsel, respectfully moves this Honorable Court to order

the parties to file additional Briefs and then grant oral
argument on a new aspect of his capital sentence raised by
virtue of this Court's opinion. The grounds for this motion are
set forth in the attached Memorandum of Points and Authorities.

RESPECTFULLY SUBMITTED this 14th day of March, 1983.

SCHOTLAND & STUEHRINGER PIMA COUNTY PUBLIC DEFENDER
Bye 2am Lt). A thee at BY. , .
: ‘ ne Keslstant z
Attorneys for Appellant Public Defender by hy
Ly 4/
BY: ave ets

sistant Public —~

De fender oy Shae

ARIZONA 65701

(602) 622-4668

61) Veansamenica Sunome

TUCSON

SCHOTLAND & STUEHRINGER
ATTORNEYS AY LAW

1 MEMORANDUM OF POINTS AND AUTHORITIES.
2 In the Motion for Rehearing filed by Appellant on this
3 date, the defense has raised several issues regarding the pro-
4 priety of a remand in his case for a new sentencing hearing.
5 These defense arguments were triggered by this Court's affir-
6 mance of Appellant's death penalty notwithstanding its holding
7 | that the lower court's sentencing verdict was based upon misin-
ga terpretations of the statutory aggrevating circumstances. As
9 _ discussed in the Motion for Rehearing, the majority of state
10 || courts require a remand for a new sentencing proceeding under
11 || such circumstances.
12) The defense believes that this is an issue of first impres-
13 | sion in Arizona and thus merit full briefing treatment given the
}

14 | obvious stakes involved in the instant case. the

15 || United States Supreme Court has recently expressed concern with

Furthermore,

16 || this precise issue as evidenced by its recent opinion in Zant v.

|
| Stephens,

17 || eae) {yn
16 | Wainwright, 685 F.2d 1227, 1261-1270 (11th Cir. 1982).

, 102 S.Ct. 1856 (1982). See also, Proffitt v.

19 |

6

For all of these reasons, Appellant respectfully urges this
Court to order the parties to fully brief this important issue
21 | regarding the Arizona death penalty statute and to thereafter
2:
23 || :
24 :
25
26:
27
28

+

PP YP PP YP
oo rm @© &® F O

ATTORNEYS AT LAW

611 Transamerica Bulloine
TUCSON, ARIZONA 85701

49a

_ allow the parties to be heard in oral argument.

o @mrown & Ww DN

RESPECTFULLY SUBMITTED this 14th day of March, 1983.

SCHOTLAND & STUEHRINGER PIMA COUNTY PUBLIC DEFENDER

BY: Os silent ; Vda i. Mi Leen

anwar)

: By ge p +e entre Poor erol Assistant
ttorneys for Appellant ublic Defender /_ 5
oe De ip Jad ——

A copy of the foregoing
delivered this 14th day
of March, 1983, to:

Pima County Attorneys Office
111 West Congress
Tucson, Arizona 85701

Appendix 1

( ( 2 aX
os det
~~?
~
Supreme Court
S. ALAN COOK STATE OF ARIZONA ANNA L CATES
CLsAK Cmiee O4PUTY Cisan

201.WESsT WING
CAPITOL BUILDING
(602) 299.4836

Phoenix 85007
) March 30, 1983
STATE OF ARIZONA, )
) Supreme Court
Appellee, ) No. 4253
)
vs. ) Pima County
) No. A-31934
JIMMIE WAYNE JEFFERS, )
)
Appellant. )
)
)
)
)

The following action was taken by the Supreme Court of the State of
Arizona on March 29, 1933 in regard to the above-entitled cause:

“ORDERED: Motion for Rehearing = Continued for one (1) week.

FURTHER ORDERED: Motion for Additional Briefs and Oral
Argument = DENIED."

S. ALAN COOK, Clerk

By Glare 6 bskto

Deputy Clerk

TO:

,James W. Stuehringer, Esq., Schotland & Stuehringer, Suite 611,
Transamerica Building, Tucson, Arizona 85701

Donald S. Klein, Esq., Pima County Public Defender's Office, 45 West :
Pennington Street, Third Floor, Tucson, Arizona 85701

Hon. Robert K. Corbin, Attorney General, 1275 West Washington Street,
Phoenix, Arizona 85007

D. Jesse Smith, Esq., Pima County Attorney's Office, 111 West Congress,
Tucson, Arizona 85701

yo’

4 ‘é : Appendix J

3
pPR
pert \
accel” ’ a 9
IN THE SUPREME COURT OF THE STATE OF ARIZOKA
En Banc
FILED
STATE OF ARIZONA, ) APR 19 1983
)
Appellee, ; “4 CLERK SUPRESAE COURT
Vv. ) No. 5424
)
JESS JAMES GILLIES, )
)
Appellant. ;

Appeal from the Superior Court of Maricopa County
The Honorable Stephen H. Scott, Judge
(Cause No. CR-117615)

SUPPLEMENTAL OPINION

Remanded for Resentencing;
Motion for Rehearing Denied.

Robert K. Corbin
The Attorney General
By William J. Schafer Ill
and David R. Cole
Assistant Attorneys General Phoenix
Attorneys for Appellee

Ross P. Lee
Maricopa County Public Defender
By H. Allen Gerhardt
Deputy Public Defender Phoenix
Attorneys for Appellant

and

Jess James Gillies (Pro Per)

_ —

HAYS, Justice

This matter is before us on a motion for rehearing. After
re-examination of the evidence and the law, we have concluded that it
would be more appropriate for us to remand the first degree murder
count to the trial court judge for resentencing.

In our’ opinion we struck down three of the four aggravating
circumstances found by the trial court. The trial court had indicated
that there were mitigating circumstances but they were not suffi- -——-
ciently substantial to call for leniency. Law and policy would
indicate that the trial judge should again make the determination
required by A.R.S. § 13-703(E). See also Zant v. Stephens, ___—iU«.S..
___, 102 S. Ct. 1855 (1982).

We remand for resentencing. Motion for rehearing is denied.

JACK D. H. HAYS, Justice

CONCURRING:

WILLIAM A. HOLOHAN, Chief Justice

FRANK X. GORDON, JR., Vice Chief Justice

JAMES DUKE CAMERON, Justice -
®

to drive them to the airport. Her body was discovered several days
later buried under a pile of rocks on Fish Creek Hill in the Super-
stition Mountains. The medical examiner determined that the cause
of her death was exsanguination, aspiration of blood and extensive
head injuries.

Appellant Jess Gillies was arrested on February 3, 1981,
tried and convicted by a jury of kidnapping, sexual assault, aggra-
vated robbery, computer fraud in the first degree, and first degree
murder. He was sentenced to 21 years each for the kidnapping and
sexual assault, to 15 years each for the aggravated robbery and the
computer fraud, all sentences to run consecutively, and to death for
the first degree murder conviction. We have jurisdiction of the
appeal from the convictions and sentences pursuant to A.R.S. § 13-403
§ 13-4035 and Ariz. Const. art. 6 § 5 (3).

Confessions by the appellant to various friends led to his
arrest and constituted the majority of evidence against him. Gillies
lived and worked at Weldon's Riding Stables in Phoenix at the time
of the crime. On January 28, 1981, Gillies and Mike Logan! were in
the U-Totem at 52nd Street and Van Buren when Suzanne Rossetti drove
up to make a purchase. Upon returning to her car, she discovered
she had locked herself out and solicited the aid of the two young
men. In gratitude for their help in unlocking her car, Rossetci
bought the men a six-pack of beer and offered them a ride back to the

riding stable. En route, ome of the men grabbed Rossetti and, after

Michael Logan was tried separately and sentenced to life imprisonmer
without possibility of parole for 25 years Pursuant to a plea
agreement, Logan showed the investigators where the body was buried
and received this reduced sentence

55a

stopping the car, pulled her to the ground where they both raped

her. Gillies and Logan drove their victim to Papago Park and then

to her apartment, apparently raping her at both locations. The men
rifled her purse and scavenged her apartment for valuables. (then
arrested, Gillies was found in possession of several belongings of
Rossetti, including her credit cards.) Rossetti was finally trans-
ported to the Superstitions where she was pushed from a cliff,
tumbling 40 feet down the rocky hillside. Gillies and Logan pursued
their victim down the hill and found her still alive. Rossetti
begged for mercy, told the men she was going to die anyway and to

let her die in peace. According to Gillies, Logan responded: "That'
right, bitch, you are."" According to Logan, Gillies began calling
the victim a whore and a bitch. The victim was then bashed on the
head with rocks until she lost consciousness. Gillies and Logan
covered her with rocks (a detective testified that two men were neede
to remove one of the rocks from her body) and drove back to Phoenix
in her car. According to the medical examiner, Suzanne Rossetti

died in approximately ten to fifteen minutes, presumably after she
was buried.

Hair and blood were found near the victim's grave. Damage
caused by small animals had been sustained by the body. The right
cheek of the victim had been crushed and the eye was missing from
the right socket. The medical examiner described various lacerations
abrasions, avulsions, and fractures to the skull and body of the
victim The victim tested posirive for seminal fluid

Between January 28 and February 3, Gillies and Logan accessed
the Valley National Bank 24-hour automated teller twenty-eight times

using Rossetti's card. Because only $250 can be withdrawn in a given

if the prosecution must rely exclusively thereon for a conviction

is not fundamental error.’ State v. Harvill, 106 Ariz. 386, 476 P.2d

841 (1970). Furthermore, appellant's conviction did not rest solely

on circumstantial evidence. We find no merit to this second argument
Failure to object to evidence, testimony or arguments waives

these matters on appeal absent a finding of fundamental error. State

v. Thomas, 130 Ariz. 4326 636 P.2d 1214 (1981). The last two issues

were not objected to at trial and do not constitute fundamental error

VII. AGGRAVATING AND MITIGATING CIRCUMSTANCES

At the sentencing, the court found four aggravating circumstan
concluded that the mitigating circumstances were not sufficiently
substantial to call for leniency and sentenced appellant to death.
Pursuant to State v. Richmond, 114 Ariz. 186, 560 P.2d 41, cert. deni
433 U.S. 915, 97 S. Cr. 2988, 53 L. Ed. 2d 1011 (1976), we must inde-
pendently review the record to determine the absence or existence of
both aggravating and mitigating circumstances and to determine, based
on the record before us, whether the death penalty should be imposed,

The first aggravating circumstance found by the court was
that appellant previously had been convicted of a felony involving
the use or threat of violence on another person. A.R.S. § 13-703 (F) ¢
The state established this aggraveting circumstance by bringing in
a former victim of a theft commit by the appellant. The trial
court permitted the victim to test ‘y as to the particular factual
circumstances of the theft, a class-six felony. The victim stated
that appellant stole $23 and a radio from him, and that the appellant
choked him with one hand around the neck and threatened to kill him

and his parents. Based on this evidence, the trial court found that

16

the appellant's conviction of theft was an aggravating circumstance
under § 13-703(F)(2) because the theft involved the use and threat
of violence on another person. We hold that this is an incorvect
application of A.R.S. § 13-703(F) (2).

In order to constitute an aggravating circumstance under A.R.§
§ 13-703(F)(2), the prior conviction must be for a felony which by
its statutory definition involves violence or the threat of violence
on another person. For example, in State v. Watson, supra, 120 Ariz.
at 448, 586 P.2d at 1260 (1978), appellant argued that there was no
showing of force or fear in his prior robbery conviction and there-
fore it could not constitute an aggravating circumstance. The court
found this argument specious. "Fear of force is an element of robber
and the conviction of robbery presumes that such fear was present."

This reading of the statute guarantees due process to a crimin
defendant. Evidence of a prior conviction is reliable, the defendant
having had his trial and exercised his full panoply of rights which
accompany his conviction. However, to drag in a victim of appellant’
prior crime to establish the necessary element of violence outside
the presence of a jury, long after a crime has been committed, violat
the basic tenets of due process.

The state has urged that State v. Greenawalt, 128 Ariz. 150,
624 P.2d 828 (1981), supports the trial court's finding of theft as
an aggravating circumstance under § 13-703(F)(2). Greenawalt allows
consideration of evidence of the circumstances surrounding defendant’:
prior criminal conduct for the purpose of determining the weight to
be given a prior conviction. We cannot allow what is, in effect, a
second trial on defendant's prior conviction to establish the existen

of an A.R.S. § 13-703(F)(2) agpravating circumstance.

17

58a

The next aggravating circumstance found by the trial court
was that the offense was committed in expectation of the receipt of
something of pecuniary value. A.R.S. § 13-703(F)(5). The state
argues in support that because the appellant's theft of the victim's
purse, money and credit cards occurred within one general transaction
the totality of circumstances demonstrate an expectation of pecuniary
gain.

In State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied,

449 U.S. 1067, 101 S. Ct. 796, 66 L. Ed. 2d 612 (1980), we held that
the application of this aggravating circumstance was not limited to
the "hired gun" situation. However, we affirmed our prior holdings
that the receipt of money must be established as a cause of the murde
not a result. We concluded in Clark that the circumstances surroundi
the episode reflected that the expectation of financial gain was a
cause of the murders. In State v. Tison, 129 Ariz. 526, 592, 633
P.2d 335, 351 (1981), appellant's statements appearing in a psycholos
evaluation offered in evidence at the mitigation hearing established
that the whole purpose of the murders was to obtain an automobile.
Without some tangible evidence, or strong circumstantial in-
ference, it is not for the sentencing court to conclude that because
money and items were taken, the purpose of the murder was pecuniary
gain. From an independent examination of the record, we do not find
any evidence that the receipt of pecuniary gain was a cause of the
murder. To the contrary, appellant's own confessions demonstrate
that the purpose of the murder was to eliminate the victim as a witne
to her own rape. Nor do we believe that the circumstances surroundit
the episode reflect that the expectation of pecuniary gain was a cau:

of the murder.

18

59a

The trial coure additionally found that the defendant committe
the offense while in the custody of the Department of Corrections.
A.R.S. § 13-703(F)(7). We find that this aggravating circumstance
did not exist.

On December 26, 1980, the appellant was granted work furlough
status in connection with his prior theft conviction, permitting him
to choose his place of residence and employment subject to approval
by a supervising officer. Appellant moved to Weldon's Riding Stables
where he both lived and worked at the time of the crime.

Arizona Revised Statutes § 31-234(C) states. that a person in
a work furlough program is in the "constructive custody" of the
Department of Corrections. To fall within the terms of A.R.S.

§ 13-703(F)(7), defendant must have "committed the offense while in
the custody of the department of corrections, a law enforcement
agency or county or city jail."' The legislative intent of this sectic
is to protect the guards and other inmates at such institutions where
a defendant is confined and to discourage violence by incarcerated
persons. We hold that A.R.S. § 13-703(F)(7) does not apply to one
who is on unsecured work furlough status.

The trial judge next found that the offense was committed in
an especially heinous, cruel and depraved manner, stating:

"The evidence that I have had presented to me estab-

lishes clearly that this victim was bound and terrorized

for approximately eight hours prior to her death. The

evidence establishes that she was raped by you as well

as your accomplice on at least two different occasions,

once at Papago Park area and the second time back at her

apartment. The evidence establishes that you and the co-

defendant either threw or pushed the victim down a 40-foor
embankment, causing serious injuries to her at that time. '

The evidence has established that when you went down to

the victim, she was injured, she was bleeding, she begged
for mercy. The evidence establishes clearly that you

19

60a

showed a gross indifference to her situation. The

victim was struck several times in the head by a rock.

While she was still alive, you and your accomplice

buried her under a pile of rocks. It was only there-

after she died."

The court found it was committed in a cruel manner because
it was apparent that the victim suffered terrible pain and mental
anguish prior to her death. We must agree.

Cruelty involves the mental and physical distress suffered
by a victim. State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980).
Where the evidence is inconclusive as to whether a victim was con-
scious during the infliction of violence to his person, the sentencin,
court cannot find that cruelty existed. State v. Woratzeck, No. 5142
(filed December 17, 1982). Evidence of the mental anguish of a victir
resulting from such factors as being held captive for an extended
period, uncertain as to his ultimate fate, is also relevant to es-
tablish cruelty. State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980)

Suzanne Rossetti was repeatedly raped, was transported from
Phoenix to the Superstitions not knowing her fate, cast from a 40-foot
cliff, then brutalized and beaten into unconsciousness prior to her
death. The victim clearly suffered both physical pain and mental
anguish. We find an abundance of evidence of cruelty and that the
Statutory aggravating circumstance of "especially cruel, heinous or
depraved" is present. Because the finding of cruelty is so compelling
it is unnecessary to make specific findings of heinousness and depravi
See State v. Gretzler, supra.

As mitigating circumstances, the trial judge listed appellant’;
age (twenty years at the time of the offense); that a felony-murder

instruction was given; and that the accomplice to the crime, Mike

Logan, received life imprisonment.

20

6la

While the age of the defendant might be a mitigating circumstar
it will not alone always require leniency. State v. Valencia, 132
Ariz. 248, 250, 645 P.2d 239, 241 (1982), (age 16 is sufficiently
substantial to call for life imprisonment instead of death). Jess
Gillies was twenty at the time of the crime. The trial judge found
that the deliberation, duration of the crime and maturity of avpellan
nullified his age. We agree.

The giving of a felony-murder instruction is a mitigating
circumstance only where there is some doubt as to defendant's specifi
intent to kill the victim. State v. Schad, 129 Ariz. 557, 574, 633
P.2d 366, 383 (1981), cert. denied, U.S. ___, 102 S. Cr. 1492,

71 L. Ed. 2d 693 (1982). Arizona case law holds that the fact that
a felony-murder instruction was given to the jury is not relevant
"where the defendant intended to kill the victim or where the defend-
ant knew with substantial certainty that his conduct would cause
death." iState v. Zaragoza, No. 5432 (filed January 10, 1983). In
Zaragoza, the defendant, the sole perpetrator of the crime, hit the
victim repeatedly on the head and left her bleeding in an alley.
There was no question that Zaragoza killed the victim. The court
concluded that it was reasonable to find that the defendant intended
to kill the victim and held that the giving of the felony-murder
instruction was therefore not a mitigating circumstance.

The facts of the case at bench merit further discussion of th
felony-murder rule as a mitigating circumstance. Two men perpetrate
crimes upon the victim, each has accused the other of being the’
murderer and there is some doubt as to who actually struck the fatal
blow. Gillies’ jury was instructed on both premeditation and felony

murder and returned a verdict of guilty of first degree murder.

21

62a

During deliberation, the jury sent a note to the judge asking if
it was necessary to designate which type of first degree murder.
The judge responded in the negative and told them to simply return
one of the two forms of verdict (guilty or not guilty). Thus, while
it is possible Gillies was found guilty of premeditated murder,
it is also possible that the jury found him accountable for the
murder only on a felony-murder theory.

“The United States Supreme Court has very recently rejected
the death penalty for accomplice liability in felony-murders. In
Enmund v. Florida, _ U.S. __, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982), the Court held that a statutory scheme which permits the
imposition of the death penalty, absent a finding that a defendant
either killed, attempted to kill or intended to kill the victim, is
unconstitutional. Enmund's codefendant robbed and fatally shot the
victims at their farmhouse in central Florida; Enmund drove the
getaway car. Both men were found guilty of first degree murder and
sentenced to death. Enmund was an aider and abetter only to the
underlying felony, was not present at the scene of the crime and did
not intend a killing or anticipate the use of lethal force. The reco
as construed by the Florida Supreme Court did not warrant a finding
that Enmund had any intention of participating in or facilitating a
murder. 102 S. Ct. at 3377, 73 L. Ed. 2d at 1152. The court surveye
the felony-murder statutes nationally and concluded that society con-
siders death a disproportionate penalty for those who fall within thi
category. "American criminal law has long considered a defendant's
intention--and therefore his moral guilt--to be critical to ‘the degr
of (his) criminal culpability.’ 102 S. Ct. at 3378, 73 L.Ed.2d at 1

While the Arizona capital sentencing statute reduces the

22

63a

likelihood that the death penalty will be imposed on a vicarious
felony-murderer, even when aggravating circumstances are present,
by making a defendant's minimal participation in a homicide a
mitigating circumstance, > Enmund appears to limit it further. We
now consider the case in light of Enmund.

In Hall v. Florida, 420 So.2d 872 (1982), and Ruffin Vv.
Florida, 420 So.2d 591 (1982), the Florida Supreme Cour’ applied
Enmund to facts very similar to the case at bar. Hall and Ruffin
abducted their victim, a woman seven months pregnant, from a grocery
Store parking lot and drove her to a secluded wooded area where they
sexually abused her. The victim was pistol-whipped on her head, neck
and body, robbed of her purse and shot to death in the back of her
head while lying face down on the ground. Both men challenged the
imposition of the death penalty on the basis of Enmund. Ruffin
argued that his uncontradicted statements proved he did not actively
participate in the homicide (he claimed that Hall fired the fatal
shot), and was at best a passive participant. The Florida court
rejected this argument and distinguished Enmund on the grounds that
Enmund wes not present at the scene of the homicide, aided and abette
only in the underlying felony, and did not intend or anticipate a
killing:

"In contrast, Ruffin was present, he assisted co-
defendant Hall in the killing of Karol Hurst, raped

her along with his partner, knew that Hall was going

to kill her and made no effort to interfere with the
killing and then continued on the joint venture,

3

A.R.S. § 13-703(G)(3) provides as a mitigating circumstance: "The
defendant was legally accountable for the conduct of another under
the provisions oe § 13-303, but his participation was relatively
minor, although not so minor as to constitute a defense to prosecutio

23

awd

64a

utilizing Mrs. Hurst's vehicle to drive to the con-
venience store

"The evidence is abundantly clear and sufficient

to demonstrate Ruffin's joint participation in the

premeditated murder of Karol Hurst, and this is the

distinction between this case and the Enmund's case

and that case is therefore not applicable to this

proceeding."

Ruffin v. Florida, supra, 420 So.2d at 594.

A similar argument was rejected in Johnson v. Zant, 295
S.E.2d 63, 67 (1982), wherein the court said: "[W]Je do not read
Enmund so narrowly as to exclude imposition of the death penalty for
all but those who fatally wield the murder weapon."

The trial judge specifically considered Gillies’ participation
in the crime, pursuant to A.R.S. § 13-793(G)(3), and concluded that
the defendant was actively engaged in the kidnapping, the rape and
the robbery of the victim, and that he transported her to the place
where she was killed. The judge found it was immaterial who actually
struck the blow to the head of the victim and that the evidence
sufficiently showed that Gillies participated in the murder, if 4t
was only to provide the rock which his accomplice used to strike
her skull, causing death. "Her death is the result that you wished
to have occurred, that is manifestly clear by your statements and
manner, actions at the time the lady was killed. I do not find that
your participation was relatively minor."

While Enmund apparently changes the current test in Arizona
for imposing the death penalty upon the felony-murderer, i.e., the
court must now find that the defendant either killed, attempted to
kill or intended to kill the victim, we are satisfied that this

requirement has been met. Gillies actively participated in the event

24

65a

leading to the death of Suzanne Rossetti, was present at all times
during the murder, and did nothing to interfere. He handed his
accomplice the rock which was used to strike her and he helped bury
the unconscious victim with rocks. According to the medical examiner
the victim took ten to fifteen minutes to die by exsanguination,
aspiration of blood and head injuries. \If the evidence shows that th
defendant took an active and deliberate part in the killing, the
death penalty may be imposed even though the theory of felony-murder
has been presented to the jury. State v. Steelman, supra, 126 Ariz.
at 21, 612 P.2d at 477. We find there is sufficient evidence to show
Gillies’ participation in the murder was substantial and intentional.

{This court has recognized as a mitigating circumstance the
fact that an accomplice to the crime was sentenced to life imprisonme
State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981). Appellant's
accomplice, Mike Logan, received life imprisonment in exchange for
pleading guilty to the first degree murder charge and leading the
investigators to the victim's body. Appellant was also approached
concerning a similar plea bargain with the state but chose instead
to exercise his right to a trial. Given these facts, we do not
consider the accomplice's sentence to be a mitigating circumstance.
Any resulting inequity between the two sentences is a consequence
induced by our plea-bargaining system.

Defense counsel also argued that appellant's capacity was
impaired due to alcohol or mental disorder. (Voluntary intoxication
is a mitigating circumstance if defendant's capacity to appreciate
the wr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1444%3A1. Public record. Not legal advice.