Opposition Brief — Arizona v. Rumsey

| RECEIVED

OMPGNA | HE

OFFICE OF THE CLERK

SUPREME COURT, U.S.

FILED

SEP 12 1965

IN THE SUPREME COURT OF THE UNITED STATES | mer STEVAS

L n

October Term, 1983

STATE OF ARIZONA,

Petitioner,

-ys-

DENNIS WAYNE RUMSFY,

Respondent.

ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

ROSS P. LEE

Maricopa County Public Defender

JAMES R. RUMMAGE

Deputy Public Defender

132 South Central Ave., Second Floor

Phoenix, Arizona 85004

Telephone: (602) 258-7711

Attorneys for RESPONDENT

QUESTION PRESENTED FOR REVIEW

Does the Arizona capital sentencing procedure resemble a trial, thus

rendering a life sentence an implicit acquittal of the death penalty, which would

bar a subsequent imposition of the death penalty on double jeopardy grounds?

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW

TABLE OF CASES AND AUTHORITIES

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I, THE ARIZONA SUPREME COURT DID NOT DECIDE

AN IMPORTANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN DECIDED BY THIS COURT.

Il. BECAUSE THE ARIZONA CAPITAL SENTENCING

HEARING RESEMBLES A TRIAL, THE ARIZONA

SUPREME COURT WAS CORRECT IN APPLYING THE

DOUBLE JEOPARDY CLAUSE TO APPELLANT'S RE-

SENTENCING.

CONCLUSION

“ii-

TABLE OF CASES AND AUTHORITIES

Page

Cases:

Aero Mayflower Transit Co. v. Board of Railroad Com'rs, 5

332 U.S. 495, 68 S.Ct. 167, 92 L.Ed. 99 (1947)

Arizona v. Washington, 8

434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978)

Bullington v. Missouri, 2, 3, 4, §

451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)

Fitzpatrick v. State, 8

___ Mont. __, 638 P.2d 1002,

cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1981)

Fong Foo v. United States, 8

369 U.S. 141, 82 S.Ct. 67, 7 L.Ed.2d 629 (1962)

Groppi v. Wisconsin, 4

400 U.S. 505, 91 S.Ct. 490, 27 L.Ed.2d 571 (1971)

Hortonville J.S.D. No. 1 v. Hortonville Ed., 4

426 U.S. 482, 96 S.Ct. 2208, 49 L.Ed.2d 1 (1976)

State v. Clark, 2,8

126 Ariz. 428, 616 P.2d 888,

cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980)

State v. Richmond, 7

114 Ariz. 196, 560 P.2d 51

State v. Rumsey, 2

130 Ariz. 427, 636 P.2d 1209 (1981)

State v. Rumsey, 3, 4, 3; 6,.7

__ Ariz. __, 665 P.2d 48 (1983)

United States v. Morrison, 5

429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976)

United States v. Wilson, 8

420 U.S. 332, 95 S.Ct. 1012, 43 L.Ed. 232 (1975)

Authorities:

Arizona Revised Statutes

§13-703 1, 2,4

$13-703(E) 3

§13-703(FX 4) 2

$13-703(FX5) 3, 7

Rules of Criminal Procedure, 17 A.R.S.

Rule 31.7 3

United States Constitution

Fifth Amendment, 3

Pouitsenth Amenament, 3

STATEMENT OF THE CASE

Respondent Dennis Rumsey was charged by an Information filed December

6, 1979 with Armed Robbery and First Degree Murder.

At trial, one Kimberly Holmes testified that in October, 1979, she and

Respondent were hitchhiking to Respondent's parents’ home in Las Vegas. They

were picked up by the victim, George Koslosky, in New Mexico or Texas. They

stopped in Phoenix, where Respondent and the victim went into a store to buy

some beer. Upon returning to the automobile, Respondent told his companion that

the victim had over three hundred dollars ($500.00), and that he was going to rob

the victim. Upon leaving Phoenix, Respondent was driving and the victim was

sleeping in the back. After driving approximately forty-five minutes, Respondent

pulled over to the side of the road, and awakened the victim. He ordered the

victim at gunpoint to empty his pockets and get into the trunk. The victim

refused, and Respondent eventually shot the victim twice and dragged him to the

side of the road.

Respondent testified in his own behalf that he had never discussed robbing

George Koslosky. Upon leaving Phoenix, he testified, the victim was driving the

car, and Respondent passed out in the back seat from consuming alcohol and

depressant drugs. Some time later, he awoke to find Kimberly driving the car,

shaking and crying. She told him she had shot the victim because he had tried

something with her when she had stopped the car to get aspirin from the trunk.

Respondent adniitted having told his brother in Las Vegas that it was he who shot

the man, but explained that he had only done so to prevent Kimberly from being

charged.

On June 6, 1980, Respondent was convicted of Armed Robbery and First

Degree Murder. On July 3, 1980, the trial court conducted a sentencing hearing

as required by A.R.S. §13-703. In its effort to prove aggravating circumstances,

the state relied on evidence already presented at trial. Respondent called as a

witness the foreman of the trial jury, who testified that the jury had rejected the

premeditation theory, and had convicted Respondent based on the felony-murder

rule, and that the jurors felt a life sentence was appropriate.

On July 7, 1980, the trial court announced its special verdict, finding that

there were no aggravating and no mitigating circumstances. One specific

aggravating factor which the trial court found did not exist was that the offense

was committed as consideration for the receipt or in expectation of the receipt,

of anything of pecuniary value. A.R.S. §13-703(FX5). Contrary to the position

the state took at the sentencing hearing, the trial court found that when

$13-703(FX5) is read together with §13-703(FX4), it is meant to apply to

contract-type killings, not to killings during robberies.

Because the trial court found that no aggravating circumstances were

proven, the court was required to impose a sentence of life imprisonment without

parole for twenty-five years. The trial court also imposed a sentence of

twenty-one years on the armed robbery charge, to run consecutively to the

sentence imposed on the murder.

Respondent appealed, arguing that the imposition of consecutive sentences

was improper; the state cross-appealed, arguing that the trial court erred in

ruling on a question of law by finding A.R.S. §13-703(FX5) inapplicable to

Respondent's case. The consecutive sentences were affirmed by the Arizona

Supreme Court. State v. Rumsey, 130 Ariz. 427, 636 P.2d 1209 (1981). The court

further ruled that, based on 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), which was decided

eighteen days after Respondent's sentencing, the trial court had erred in ruling

that A.R.S. §13-703(FX5) only applied to murder for hire situations, (Id.) The

sentence of life imprisonment on the murder charge was set aside, and the matter

remanded for redetermination of aggravating and mitigating circumstances and

resentencing on that charge.

On remand, the trial court held another sentencing hearing under A.R.S.

§$13-703. No further evidence was presented, both parties relying on the evidence

presented at trial and the first sentencing hearing. Respondent argued that this

Court's opinion in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d

270 (1981), prohibited the trial court from imposing the death penalty after having

previously sentenced Respondent to life. On February 4, 1982, the trial court

announced its finding that the only aggravating circumstance was that the offense

was committed for pecuniary gain under A.R.S. §13-703(FX5). The trial court

found no mitigating circumstances, and ordered that Respondent suffer the

penalty of death as required under A.R.S. §13-703(E).

The death sentence was appealed automatically under 17 A.R.S., Rules of

Criminal Procedure, Rule 31.7. A number of issues were raised by Respondent on

appeal; however, the Arizona Supreme Court limited its discussion to whether,

under the Bullington v. Missouri, supra, analysis, the Arizona capital sentencing

procedure is effectively a trial. State v. Rumsey, Ariz. __, 665 P.2d 48

(1983). The court found that it is, and that as a result, Respondent's original life

sentence amounted to an acquittal of the death penalty. (Id.) A subsequent

sentence of death, the court held, would violate the double jeopardy provisions of

the Fifth Amendment to the United States Constitution, as made applicable to the

states through the Fourteenth Amendment.

(

REASONS FOR DENYING THE WRIT

I, THE ARIZONA SUPREME COURT DID NOT DECIDE

AN IMPORTANT QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN DECIDED BY THIS COURT.

Petitioner contends that the question decided by the Arizona Supreme

Court is a question of federal law which has not been decided by this Court.

Respondent submits that Petitioner's analysis in this regard is misdirected.

Petitioner views the question presented herein in the following way: "May the

Arizona Supreme Court vacate an erroneous life sentence based upon a legal error

and remand for resentencing to correct the trial court error?" (Petition for Writ

of Certiorari, p. 11). Respondent respectfully submits to this Court that the

question formulated by Petitioner misses the true question: Is Arizona's capital

sentencing hearing effectively a trial? That question must be answered in order

to answer the question formulated by Petitioner. When viewed in this way, it is

clear that the only question of federal law involved herein has already been

decided by this Court in Bullington v. Missouri, supra. In Bullington, this Court

held that when a capital sentencing procedure resembles a trial, a sentence to life

imprisonment under that procedure amounts to an acquittal as to the death

penalty, preventing the later imposition of the death penalty. In the present case,

the only decision the Arizona Supgeme Court was required to make was an

interpretation of state law: Does the Arizona capital sentencing hearing resemble

a trial? The Arizona court answered the question affirmatively, stating:

In Arizona, as in Missouri, a special procedure is appli-

cable to capital cases. The resemblance of this procedure

to trial is apparent on examination of A.R.S. Si3-T03.

__ Ariz, at , 665 P.2d 48,

at 53. (Emphasis added.)

Once the Arizona court made that determination, its action was directed by

Bullington.

Petitioner contends that the Rumsey decision will affect similar resen-

tencings in three states other than Arizona. Respondent submits that in fact it is

up to the courts of those three states to determine if their sentencing procedures

resemble a trial, and apply Bullington accordingly. Petitioner further contends

that appellate courts in Arizona and the other three states will be hampered in

reviewing life sentences which have been "erroneously or illegally imposed." In

actuality, however, the Arizona Supreme Court does not review life sentences as

it does death sentences. As the Arizona Supreme Court pointed out in its second

opinion herein, although death penalty cases are automatically appealed to the

Arizona Supreme Court, no appeal is required when a life sentence is imposed, and

the state is not permitted an appeal unless the defendant has appealed. 665 P.2d

49, at 55, n. 10. The Arizona court further points out that it performs an

independent review and proportionality review of cases in which the death penalty

was imposed to determine if that sentence is excessive or disproportionate; it

does not review life sentences to determine whether they are too lenient. 665

P.2d 48, at 55.

In summary, the decision of the Arizona Supreme Court herein did not

constitute a decision of a federal question not previously decided by this Court,

nor was it a decision that will affect cases or hamper review in Arizona and three

other states. It was simply an interpretation of state law in answer to the

question: Does the sentencing hearing described in A.R.S. §13-703 resemble a

trial? The Arizona Supreme Court has held that it does. This Court has long held

that it is bound to accept the interpretation of state law by the highest court of

the state. Hortonville J.S.D. No. 1 v. Hortonville Ed., 426 U.S. 482, 488, 96 S.Ct.

2308, 2312, 49 L.Ed.2d 1 (1976); Groppi v. Wisconsin, 400 U.S. 505, 507, 91 S.Ct.

490, 492, 27 L.Ed.2d 571 (1971); Aero Mayflower Transit Co. v. Board of Railroad

Com'rs, 332 U.S. 495, 499-500, 68 S.Ct. 167, 169, 92 L.Ed. 99 (1947).

For the above reasons, this Court should deny the Writ requested by

Petitioner.

0. BECAUSE THE ARIZONA CAPITAL SENTENCING

HEARING RESEMBLES A TRIAL, THE ARIZONA

SUPREME COURT WAS CORRECT IN APPLYING THE

DOUBLE JEOPARDY CLAUSE TO APPELLANT'S RE-

SENTENCING.

Petitioner characterizes the issue presented here as a narrow one. With

that Respondent would agree. When the issue is distilled down to its essential

components, it is narrow indeed. Bullington v. Missouri, supra, states that when a4

capital sentencing resembles a trial, double jeopardy applies; the Arizona Supreme

Court has held that the Arizona capital sentencing hearing resembles a trial. It is

with this determination by the Arizona court that Petitioner takes issue.

Petitioner attempts to distinguish the Arizona sentencing scheme from

Missouri's in eight different ways. Petitioner first points out that, unlike

Missouri, Arizona has no jury involved in the sentencing. This distinction is not

relevant to the question of whether the double jeopardy clause should apply. As

the Arizona court pointed out in its unanimous opinion, "For purposes of double

jeopardy, it has never made a difference whether a case was tried before a judge

or a jury. See, United States v. Morrison, 429 U.S. 1, 97 S.Ct. 24, 50 L.Ed.2d 1

(1976). . . ." 665 P.2d at 54.

Petitioner next points out that there are seldom live witnesses in an

Arizona sentencing hearing. Again, this point is not relevant to the double

jeopardy inquiry. Double jeopardy protection is afforded to a defendant on a

criminal charge ewen though he may choose to submit the case for a decision by

the trial court based on previous testimony or stipulated exhibits.

Petitioner's third and fourth points are that the Arizona statute does not

require opening statements, and permits but does not require closing arguments.

Again, these points are not relevant to the double jeopardy issue, since at a trial

on the issue of guilt or innocence either or both parties may waive opening

statement or closing argument without affecting the defendant's rights under the

Double Jeopardy Clause.

The next distinction raised by Petitioner is that no instructions to the

factfinder are required by the Arizona statute. Again, this has no effect on

double jeopardy considerations. At a trial to the court on the issue of guilt or

innocence, no instructions are required, as the court is presumed to know the law.

The parties may, of course, argue the law to the court at the sentencing hearing,

as is done quite regularly.

The sixth point argued by Petitioner is that although aggravating circum-

stances must be shown beyond a reasonable doubt, mitigation sufficient to call for

a life sentence need not be shown beyond a reasonable doubt. Petitioner forgets

that this is almost precisely the burden of proof which exists at a trial on guilt or

innocence: The state must prove all of its case beyond a reasonable doubt. A

defendant need not prove his innocence beyond a reasonable doubt. For instance,

if a defendant argues alibi, he need not prove that alibi beyond a reasonable

doubt, he need only raise some reasonable doubt that he is the guilty party.

The seventh argument raised by Petitioner is that evidence regarding

aggravation is governed by the rules of evidence, while there is no such limitation

on mitigation. Respondent submits that as the Arizona Supreme Court said, this

distinction is insignificant. 665 P.2d 48, at 54. As the Arizona court pointed out,

the distinction is true only of mitigating evidence presented at the sentencing

hearing, not of mitigating evidence presented at trial. Id. Assuming the truth of

Petitioner's statement that there are seldom live witnesses in an Arizona

sentencing hearing, this distinction is particularly insignificant.

Petitioner's final distinguishing point, raised separately from the rest, is

that the Missouri statute permits a jury to be lenient. The Missouri jury can dive

a life sentence even though they find the necessary aggravation for the death

penalty and the lack of sufficient mitigation. This is prohibited in Arizona, since

the Arizona statute makes the death penalty mandatory when the trial court finds

aggravating factors, but insufficient mitigating factors. Somehow, Petitioner

believes this distinction makes Missouri procedure more like a trial than Ari-

zona's. Quite clearly, the precise opposite is true. Juries who decide the issue of

guilt or innocence are never instructed that they may find a defendant not guilty,

despite having found that the state proved his guilt beyond a reasonable doubt. In

this respect, Arizona's procedure is far more like a trial than Missouri's.

Petitioner further contends that the capital sentencing procedure in

Arizona is not a "final step" because the Arizona Supreme Court conducts an

independent review of each case in which the death penalty is imposed. Peti-

tioner's argument might have some validity if the Arizona Supreme Court

independently reviewed both death penalties and life sentences imposed after

capital sentencing hearings. However, as Petitioner candidly admits, the Arizona

court has never increased a life sentence to death. The reason for this was

clearly articulated in the unanimous opinion in the second Rumsey decision:

We have never hele that if the trial court finds sufficient

mitigating circumstances we have independent power to

reject its factual and legal conclusions and impose the

death penalty. Our obligation on review is to determine

whether "the punishment imposed is greater than the

circumstances of the case warrant." State v. Richmond,

114 Ariz. at 196, 560 P.2d at 51. In capital cases "we

necessarily undertake an independent review of the facts

that establish the presence or absence of aggravating and

mitigating circumstances . . . [to] determine for our-

selves if the latter outweigh the former... ." Id.

(citations omitted). Our proportionality review is not to

determine whether life imprisonment was too lenient, but,

rather, to determine "whether the sentences of death are

excessive or disproportionate." Id.

665 P.2d at 55 (Footnote

omitted.)

The court further stated:

We hold, therefore, that the Arizona procedure is not

a single indivisible hearing, but instead resembles a trial

on the issue of life or death followed by the utilization of

this court's appellate process to make a conscientious

review on a statewide basis in order to assure rationality

and "evenhanded operation" in the imposition of the death

penalty. This review is conducted in order to determine

whether the death penalty, when imposed by the trial

court, should be reduced to life.

665 P.2d at pp. 55-56.

Petitioner also argues that the state "proved its case” at Respondent's

original sentencing hearing, and that, therefore, allowing the state supreme court

to "correct" the "erroneous" sentence would not violate the Double Jeopardy

clause. Petitioner's position is not fully supported by the facts. After the original

sentencing hearing, the trial court's special verdict announced the finding that

there were no aggravating circumstances. Thus, the state failed to prove its case

at the original sentencing hearing. It is true that eighteen days after Respond-

ent's sentencing the Arizona Supreme Court issued an opinion in another case

which disagreed with the trial court's ruling that A.R.S. §13-703(FX5) did not

apply to murders which occur during a robbery. State v. Clark, supra. That,

however, is irrelevant to double jeopardy considerations. The trial court's finding

that there were no aggravating circumstances was a finding that the state failed

to prove its case, and amounted to an acquittal of the death penalty. No matter

how erroneous an acquittal may be, even though based on an incorrect interpreta-

tion of law, it cannot be overturned on appeal. Arizona v. Washington, 434 U.S.

497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); Fong Foo v. United States, 369 U.S. 141,

82 S.Ct. 67, 7 L.Ed.2d 629 (1962).

Petitioner contends that the present case is similar to United States v.

Wilson, 420 U.S. 332, 95 S.Ct. 1012, 43 L.Ed. 232 (1975), in whieh this Court held

that the Double Jeopardy Clause permitted overturning a post-verdict acquittal.

In fact, Wilson is plainly distinguishable from Respondent's case. In Wilson, the

jury had returned a verdict of guilty. After that verdict, the trial court dismissed

the indictment on the grounds that the government had caused unwarranted

pre-indictment delay which prejudiced the defendant. The government appealed

from the trial court's post-verdict ruling. This Court held in Wilson that the

government's appeal did not violate the Double Jeopardy Clause, because should

the government prevail, the original jury verdict of guilty would simply be

reinstated. The facts of Wilson stand in stark contrast to the facts of the case

before this Court. In the present case, there was no original special verdict

finding aggravating circumstances which could be reinstated; there was no death

penalty which could be reinstated. The only way that the error of which the state

complained could be corrected would be to require a new hearing and a new

verdict. This is unlike Wilson, where no new trial and no new verdict were

required. This distinction is precisely the ground upon which this Court held the

government's appeal in Wilson to be permissible, and is precisely the reason that

imposition of the death penalty at Appellant's resentencing was a violation of the

Double Jeopardy Clause.

Petitioner has cited Fitzpatrick v. State, = Mont. __, 638 P.2d 1002,

cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118 (1981), stating that

Montana's death sentencing procedures are similar to Arizona's, and that the

Montana Supreme Court held its procedure to be unlike a trial. Fitzpatrick is

readily distinguishable from the present case on some major points. The Montana

court stated, in distinguishing their procedure from Missouri's, that the Montana

procedure does not require proof beyond a reasonable doubt, and gives the judge

wider discretion in imposing a sentence other than death. 638 P.2d 1002, at 1017.

Arizona does, of course, require proof beyond a reasonable doubt, and directs the

judge quite precisely as to when the death penalty shall be imposed and when a

life sentence shall be imposed.

The Arizona capital sentencing procedure carries the major hallmarks of a

trial: the sentencing judge does not have a wide range of penalties to choose

from, only two; there are specivic standards governing that choice; and the burden

is on the state to prove certain aggravating factors beyond a reasonable doubt

before the death penalty can be imposed. The Arizona Supreme Court was

correct in determining that the Double Jeopardy Clause applied to Respondent's

sentencing, and that it barred the trial court from resentencing him to death after

previously sentencing him to life.

CONCLUSION

The case before this Court does not present a question of federal law which

has not been settled by this Court. The only question decided by the Arizona

Supreme Court was one of state law, i.e., that the Arizona capital sentencing

procedure amounts to a trial. Further, the Arizona Supreme Court was correct in

determining that said sentencing procedure is effectively a trial, because that

sentencing procedure includes the significant hallmarks of a trial on the issue of

guilt or innocence. For those reasons, the writ of certiorari to the Arizona

Supreme Court should be denied.

RESPECTFULLY SUBMITTED,

ROSS P. LEE

Maricopa County Public Defender

Ps mao Z

™ ° A a

/ Deputy Public Defender

Attorney for Respondent

‘ 132 South Central, 2nd Floor

Phoenix, Arizona 85004

ORIGIN «:

STATE OF ARIZONA,

Petition SUPREME COUR

F THE CLERK

OFFICE 0 1 US.

ha NO, 83-226

IN THE SUPREME COURT OF THE UNITED TATE ECEIVE D |

October Term, 1983

? 2 3 |

Sep &- 1985;

-VS-

DENNIS WAYNE RUMSEY,

Respondent.

ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondent, DENNIS WAYNE RUMSEY, pursuant to Rule 46, Supreme

Court Rules, asks leave to file the attached Brief In Opposition To Petition For

Writ Of Certiorari to the Arizona Supreme Court without pre-payment of costs

and to proceed in forma pséuperis. The Respondent was represented by the

Maricopa County Public Defender's Office, of which the undersigned is a member,

in the Superior Court of Maricopa County, and on appeal to the Arizona Supreme

Court. The Respondent's Affidavit in support of this motion is attached hereto.

Respectfully submitted this E inca day of September, 1983.

ROSS P. LEE

Maricopa County Public Defender

A ° A

Deputy Public Defender

132 South Central, 2nd Floor

Li Phoenix, Arizona 85004

Telephone: (602) 258-7711

Attorney for Respondent

No, 83-226

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1983

STATE OF ARIZONA,

Petitioner

-VS-

DENNIS WAYNE RUMSEY,

Respondent.

AFFIDAVIT

I, Dennis Wayne Rumsey, being first duly sworn according to law, depose

and say, that I am the Respondent in the above-entitled case; that I am currently

incarcerated in the Arizona State Prison; that in support of my motion for leave

to proceed without being required to prepay fees, costs or give security therefore,

I state that because of my poverty I am unable to pay the costs of said proceeding

or to give security therefor; that I am not presently employed; that my only

income in the past twelve months was ten dollars given to me by my mother; that

I do not own any cash, checking or savings accounts, nor any valuable property;

that both before the state trial court and on appeal, I was represented by

appointed counsel; that I believe the State of Arizona is not entitled to the

redress sought in this case; the nature of said cause is briefly stated as follows:

I was sentenced to a life term in the Arizona Department of Corrections on

a charge of Murder, First Degree. On remand for resentencing, I was sentenced

to suffer the penalty of death. On appeal, the Arizona Supreme Court set aside

the death penalty on the ground that its imposition at resentencing violated the

provisions of the Double Jeopardy clause. In this proceeding, the state is seeking

to have the death penalty reinstated.

I understand that a false statement in this affidavit will subject me to

penalties for perjury.

SUBSCRIBED AND SWORN TO before me this © _ day of

vidi dad» 1088.

/ Pa Te. ted

Notary Public

My Commission Expires:

My Commission Bo oe hr 8 vane Wi liam clt. Brithart

NO. 83-226

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA,

October Term, 1983

Petitioner,

-vVS-

DENNIS WAYNE RUMSEY,

Respondent.

ON WRIT OF CERTIORARI TO THE ARIZONA SUPREME COURT

CERTIFICATE OF SERVICE

I hereby certify that one copy of the Motion For Leave To Proceed In

Forma Pauperis and Affidavit, the Brief In Opposition To Petition For Writ Of

Certiorari to the United States Supreme Court, and the Certificate of Service

were served on each of the following persons by depositing the copies in a United

> =

States post office, with first-class postage prepaid, on this 7 - day of

September, 1983:

WILLIAM J. SCHAFER III

Chief Counsel, Criminal Division

Arizona Attorney General's Office

1275 West Washington Street

Phoenix, Arizona 85007

Attorney for Petitioner

I further certify that all parties required to be served have been served.

ROSS P. LEE

Maricopa County Public Defender

e—>~-

Deputy Public Defender

132 South Central, 2nd Floor

Phoenix, Arizona 85004

Telephone: (602) 258-7711

Attorney for Respondent