Petition — RICHMOND v. ARIZONA (No. 83-5449)

Supreme Court brief1983

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LAW OFFICES

PIMA COUNTY PUBLIC DEFENDER

45 WEST PENNINGTON STREET. THIRD FLOOR

TUCSON, *RIZONA 85701

TELEPHONE. [602] 79!-3300

LAWRENCE H. FLEISCHMAN

ATTORNEY FOR DEFENDANT

LHF : pfa 9/20/83

RECEIVED

SEP 92 182:

OFFICE OF THE CLERe

SUPREME COURT. U>

7% - a

IN THE

rDpprewe CAreET Ar tyr o rererecn ——

SUPREME COURT OF THE UNITED STATES

Petitioner,

Vs.

THE STATE OF ARIZONA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE ARIZONA SUPREME COURT

LAWRENCE H. FLEISCHMAN

Assistant Public Defender

45 West Pennington

Tucson, Arizona 85701

Attorney for Petitioner

TABLE OF CONTENTS

QUESTICNS PRESENTED

CITATION OF OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS AND STATUTES 3

STATEMENT OF THE CASE 3

REASON FOR GRANTING THE WRIT 5

CONCLUSION 21

APPENDIX A

State v. Richmond, acing

666 P. 2d 57 (1983) (1)

APPENDIX B

Copy of Warrant of Execution,

State v. Richmond (2)

APPENDIX C

A.R.S. § 13-703 (Arizona's Death Penalty Statute) (3)

CITATIONS

Apodaca v. Oregon

406 U.S. 404, 92 S. Cr. 1628, 32

L. Ed. 240184 (1972) 19

Eddings v. Oklahoma

455 U.S. 104, 102 S. Ct. 869, 71

L. Ed. 2d 1 (1982) 4,4: 29, 46, 37.20

Godfrey v. Georgia

446 U.S. 420, 100 S. Ct. 1759, 64

L. Ed. 2d 398 (1980) BS, 3, 16;32, 3c

Gregg v. Georgia

428 U.S. 153, 96 S. Ct. 2909, 49

L. Ed. 2d 859 (1976) ,. Sy a2, 437135. 2. 37

Johnson v. Louisiana

406 U.S. 356, 364-365, 92 © Ct.

1620, 32 L. Ed. 2d 152, 160-161 (1972) 19

TABLE OF CONTENTS

(Continued)

Lockett v. Ohio

438 U.S. $86, 98 S. Ct. 2954, 5/7

L. Ed. 2é€ 973 (1 >

Michigan v. Long

U.S. , 103 S. Ce i: ,

LC. Ed. 2¢ 1201, 1212-1216 (1983)

Proffitt v. Florida

428 U.S. 242. 252. 96 S. Ct. 2960

49 L. Ed. 2d 913 (1976)

State v. Arnett

125 Ariz. 201, 608 P. 2d

778 (1980)

State v. Blazak

131 Ariz. 598, 643 ! zd

694 (1982)

State v. Brookover

124 Ariz. 38

1326 (1979)

State v. Ceja

126 Ariz. 35, 612 P. 2d

491 (1980)

State v. Gerlaugh

134 Ariz. 164, 654 ?.2d 800 (1982)

State v. Gillies

Ariz. , 662 P. 2d

1007 (1983)

State v. Graham

3t{( eo 660 P. 2d

Z60 (1983)

State v. Gretzler

135 Ariz. 42, 659 P. 2d

1, 12 (1983)

State v. H-lsinger

115 Ariz. 89, 563 P. 2d

888 (1977)

State v. Jeffers

Ariz. , 661 P. 2d

TI05, 1131 (1983)

PAGES

13, 19, 20

6, 18

11, 12

8, 9, 10

TABLE OF CONTENTS

(Continued)

State v. Knapp

114 Ariz. 531, 543, 562 P. 2d

704, 716 cert den. 435 U.S.

908 (1977)

State v. Lujan

124 Ariz. 365, 604 P. 2d

629 (1979)

State v. Madsen

125 Ariz. 346, 609 P. 2d 1046,

cert den. 449 U.S. 973 (1979)

State of Arizona v. Willie Lee Richmond

Ariz. , 666 P. 2d

ay: ae: ha = we Be FS

State v. Richmond

114 Ariz. 186, 56

cert den. 433 U.S.

53 L. Ed. 2d 1101

2d 41 (1976)

5, 97 S. Cr. 2988,

(1977)

State v. Schad

v. Valencia

32 Ariz. 24, 645 P. 2d

39 (1982

State v. Watson

129 Ariz. 60, 628 P. 2d

943 (1921)

State v. Watsor

120 Ariz. 441, 586 P. 2d 1253 (1978)

cert den. 440 U.S. 924, 99 S. Ct. 1254,

59 L. Ed. 2d 478 (1979)

State v. Zaragoza

135 Ariz. 63, 659 P. 2d

22, 28 (1983)

-iii-

13,

PAGES

17, 18

ae Pe

15, 16

QUESTIONS PRESENTED

I. IS ARIZONA'S AGGRAVATING CIRCUMSTANCE OF "ESPECIALLY

HEINOUS AND DEPRAVED” UNCONSTITUTIONAL, EITHER ON ITS

FACE OR AS APPLIED TO THIS CASE, WHERE A MAJORITY OF

THE ARIZONA SUPREME COURT FOUND THAT THIS FACTOR COULD

NOT BE SAID TO EXIST?

Il. MAY THE DEATH PENALTY BE IMPOSED WHEN THE TRIAL COURT

DOES NOT MAKE A FINDING AS TO THE EXISTENCE OF

SIGNIFICANT MITIGATING EVIDENCE, WHEN SUCH EVIDENCE

WAS UNCONTRADICTED AND CORROBORATED AT THE SENTENCING

HEARING?

III. WHEN ONE MEMBER OF THE STATE SUPREME COURT DETERMINES

THAT THE DEATH PENALTY SHOULD NOT BE IMPOSED, IS THE

FEDERAL CONSTITUTION VIOLATED WHEN THE STATE CONSTITUTION

REQUIRES UNANIMOUS JURY VERDICTS AND THE STATE SUPREME

COURT IS SITTING AS A BODY INDEPENDENTLY REVIEWING THE

PROPRIETY OF IMPOSITION OF THE DEATH PENALTY?

pie

2 CITATION OF OPINION BELOW

° State of Arizona v. Willie Lee Richmond, ___ Ariz. __,

: 666 P. 2d 57 (1983), motion for rehearing denied June 29,

. 1983. Warrant of Execution issued on July 5, 1983.

. Application for extension of time to file petition for

. | certiorari to the United States Supreme Court granted by

. Justice Rehnquist on July 18, 1983, extending time until

. September 26, 1983.

ss A copy of the opinion from which the instant petition

” for certiorari is sought is appended hereto as Appendix A.

= Prior opinion in this case is found in State v. Richmond,

” 114 Ariz. 186, 560 P. 2d 41 (1976), cert den. 433 U.S. 915,

97 S. Ct. 2988, 53 L. Ed. 2d 1101 (1977). The instant

” petition is taken from resentencing to death following the

we Arizona Supreme Court's declaration that Petitioner's original

= death sentence was unconstitutional under State v. Watson,

120 Ariz. 441, 586 P. 2d 1253 (1978), cert den. 440 U.S. 924,

a 99 S. Ct. 1254, 59 L. Ed. 2d 478 (1979).

~ STATEMENT OF JURISDICTION

. This petition for certiorari is taken froxw the Arizona

“¢ Supreme Court's resentencing of Petitioner to death. The

- Arizona Supreme Court denied Petitioner's motion for rehearing

s and issued a warrant of execution for September 7, 1983.

e Petitioner's execution was stayed by order of Justice

of Rehnquist on August 17, 1983 pending disposition of the

- instant petition for certiorari. This Court has jurisdiction

- under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. CONST. Amends. V, VI, VIII, XIV

ARIZ. REV. STAT. § 13-703 See Appendix C

ARIZ. CONST., Art. ©, § 23

STATEMENT OF THE CASE

The history of this case is as follows:

Ba Petitioner was originally convicted of first degree

murder, and his conviction and sentence of death were affirmed

by the Arizona Supreme Court. State v. Richmond, 114 Ariz.

186, 560 P. 2d 41 (1976), cert. den. 433 U.S. 915, 97 S. Ct.

2988, 53 L. Ed. 2d 1101 (1977).

2. Petitioner's death sentence was vacated, and a

resentencing ordered, when Arizona Supreme Court declared

Arizona's death penalty statutes to be violative of Gregg v.

Georgia, 428 U.S. 153, 96S. Ct. 2909, 49 L. Ed. 2d 859

(1976) because the trier of fact in Arizona was not permitted

to consider all mitigating factors in assessing the propriety

of imposition of the ultimate penalty. State v Watson,

120 Ariz. 441, 586 P. 2d 1253 (1978). cert den. 440 U.S. 924,

99 S. Ct. 1254, 59 L.Ed. 2d 478 (1979).

3. Petitioner was resentenced to death, and, in the

opinion attached hereto as Appendix A, a divided Arizona

Supreme Court affirmed that sentence.

4. In so doing, three of the five justices of the

Arizona high court declared that the sentencing judge erred in

determining that the murder in the instant case was committed

in an “especially heinous" manner, an aggravating circumstance

under A.R.S. § 13-703(F)(6). See Exhibit C, infra. The two

justices authoring the plurality opinion believed that

aSe

. Petitioner's actions were “especially heinous,” and, that

2 the trial court could also have found them to be “especially

. depraved" under the same statute. This, combined with

. Petitioner's convictions for another first degree murder and

. kidnapping, justified imposition of the death penalty in the

. plurality opinion, which had the concurrence of two of the

4 justices who disagreed about the establishment of the

. “especially heinous” aggravating circumstance.

, >. The fifth justice of the Court disagreed with the

. other four and dissented from affirmance of the death penalty,

declaring that the uncontradicted, corroborated evidence at

resentencing showed that Petitioner had used his years on

eo I

death row in an exemplary fashion, and that executing

Petitioner at this point would serve no valid societal

1§

purpose:

The theme which ran through all of the

17 testimony at the sentence hearing was

that defendant had changed remarkably

18 since he had arrived at prison six years

previously. The witnesses believed that

19 defendant's attitude had improved

materially, that he had found a purpose

20 in life and now had a genuine desire

to better himself, and, more important,

21 to help others. There seemed to be no

question but that this desire to help

22 others was more than subjective; it was

actually carried into effect. Richmond,

23 supra, at 666 P. 2d 69. (Feldman, J.,

dissenting).

ie Petitioner raised the issues set forth in this

petition at the state trial court level at the time of

resentencing, then asserted these issues in his appeal to the

Arizona Supreme Court.

8. Petitioner's request on this petition is for an

order reducing his death sentence in life in prison, to be

Ko)

served consecutively to the life sentence currently imposed

alive

a i Se

upon him for the other first degree murder conviction used

by the Arizona Supreme Court as an aggravating circumstance.

See Richmond, supra, at 666 P. 2d 71. In short, Petitioner

recognizes that he will never leave p ison, but requests that

this Court grant him a full measure of life in prison, so that

he may continue in the fashion depicted by the uncontradicted

testimony at his resentencing and as noted by Justice Feldman

in his dissent from imposition of the death penalty.

REASONS FOR GRANTING THE WRIT

A. THE UNIQUENESS OF PETITIONER'S CASE

This is a case which the majority of the Arizona Supreme

Court concluded was “not above the norm of first degree

murders," Richmond, supra, at 666 P. 2d at 68, yet Petitioner

now faces the death penalty no less than those whose crimes

the state high court unanimously believed merited such a

sentence.

In Arizona, A.R.S. § 13-706(F)(6) establishes as an

aggravating circumstance for imposition of the death penalty

the fact that the murder was committed in an "especially

heinous, cruel or depraved manner." While the aggravating

circumstances which justify the death penalty have never been

prioritized, and while a defendant can be put to death even

if this aggravating factor is not established, the fact remains

that the Arizona Supreme Court has often indicated that the

“cruel, heinous” standard is the one which separates @ death-

penalty case from a “normal” first degree murder. State v-

Jeffers, __ Ariz. __, 661 P. 2d 1105, 1131 (1983);

State v. Gretzler, 135 Ariz. 42, 659 P. 2d 1, 12 (1983);

State v. Zaragoza, 135 Ariz. 63, 659 P. 2d 22, 28 (1983);

-5-

KB)

State v. Ceja, 126 Ariz. 35, 612 P. 2d 491 (1980) 1

The majority in this case believed that Petitioner's

background, and, in particular, his prior conviction for first

degree murder, justified imposition of the death penalty

despite the fact that the particular crime now under review

was not a death case The manner in which this decision was

reached, and the failure to utilize the remarkable change in

Petitioner's character during his years on death row, render

this conclusion contrary to the Constitution. It was in fact

precisely the existence of corroborated, uncontradicted

evidence of Petitioner's character development which prompted

the dissent from Justice Feldman.

Prior to discussing the constitutional issue raised in

this petition, several other factors should be noted. The

Arizona Supreme Court, prior to the opinion from which

certiorari is now being sought, has never indicated that it

believed Petitioner's crime was committed in an “especially

heinous, cruel or depraved" manner, indicating in its earlier

opinion affirming the death penalty that it did not have to

reach that particular question. State v. Richmond, 114 Ariz.

186, 196-197, 560 P. 2d 41, 51-52 (1976).

As noted on review in the instant case, the majority of

the Arizona Supreme Court determined that Petitioner's crime

was not “especially heinous, cruel, or depraved," and con-

cluded therefore that his case is “not above the norm of first

Petitioner is aware of only four Arizona cases in

which the death penalty was imposed and some portion of the

“cruel, heinous" aggravating circumstance was not found by the

sentencing court or the Arizona Supreme Court. See State v.

Blazak, 131 Ariz. 598, 643 P. 2d 694 (1982); State v. Schad,

170 Ariz. 557, 633 P. 2d 366 (1981); State v. Arnett, 175 Ariz.

201, 608 P. 2d 778 (1980); State v. Holsinger, TIS Ariz. 89,

563 P. 2d 888 (1977).

afin

degree murders." Richmond, supra, at 666 P. 2d 68.

Moreover, to the best of Petit ioner's knowledge his is

no mates ee oe a ccm ag a Penna etait nn

the first case in Arizona history in which a majority of the

Arizona Supreme Court felt that this important aggravating

factor was not properly found by the trial court and yet still

affirmed imposition of the death ‘penalty In every other case

—_—_—_

in which either “especially heinous, cruel, or depraved" was

rejected by the state supreme court, the death penalty was

likewise rejected and a life sentence ordered, despite the

fact that in at least two such cases other aggravating factors

were deemed to exist. See State v. Watson, 129 Ariz. 60, 628

P. 24 943 (1981); State v. Madsen, 125 Ariz. 346, 609 P. 2d

1046, cert. den. 449 U.S. 973 (1979); State v. Lujan, 124 Ariz.

365, 604 P. 2d 629 (1979): State v. Brookover, 124 Ariz. 38,

601 P. 2d 1326 (1979) (in which another aggravating circumstancd

was found to exist but the death penalty was still overturned).

The Watson decision, as noted by Justice Feldman in his

dissent in the instant case, seems to almost demand imposition

of a life sentence in Petitioner's case. In Watson, the

Arizona Supreme Court found that two aggravating factors

identical to those found in Petitioner's case and based on

Watson's prior robbery conviction, were properly found by

the trial court conducting the sentencing. However, due in

large part to mitigating evidence of Watson's behavior ir.

prison which closely paralleled the evidence introduced by

Pstitioner in this case, the Court held that the death penalty

was not justified and imposed a life sentence.

There is thus established in this case a critical

disagreement amongst the justices of the Arizona Supreme

Court about the existence of the one aggravating factor which

ee ee > 2;

the Court has said separates “normal” first degree murder

cases from death penalty cases. Moreover, this is the first

case in Arizona history in whic! of the justices believed

that imposition of the death penalty was improper, and there-

fore dissented from affirmance of the sentence and did not

sign the warrant of execution. (See Appendix B, supra)

<_ ee

While Justice Feldman's dissent sounds in many areas, the

bottom line goes to the heart of the issue--despite Petitioner’

criminal background, the uncontradicted, corroborated evidence

in this case soundly demonstrates that he is not the sort of

person for whom the death penalty is reserved.

It is therefore in light of the truly unique posture of

this case that the constitutional issues presented in this

petition must be examined.

B. APPLICATION OF ARIZONA'S AGGRAVATING CIRCUMSTANCE OF

“ESPECIALLY HEINOUS AND DEPRAVED" IS UNCONSTITUTIONALLY

BROAD AND VAGUE

In Grege v. Georgia, 428 U.S. 153 at 188-190, 96 S. Ct.

2909 at 2932, 49 L. Ed. 2d 859 at 883 (1976), this Court held

it a violation of the Eighth and Fourteenth Amendments to enact

the death pynalty where the State's sentencing procedures do

not provide for a sufficiently narrow construction of the death

penalty to make sentencing discretion “suitably directed and

limited.”

In Godfrey v. Georgia, 446 U.S. 420, 100 S. Ct. 1759, 64

L. Ed. 2d 398 (1980), this Court overturned the death penalty

based on « recognition that Georgia's aggravating circumstance

of “outrageously or wantonly vile, horrible and inhuman” was

applied in an unconstitutionally overbroad and vague fashion

in that particular cese.

In State v. Gretzler, 135 Ariz. 42 , 659 P. 2d 1 at 9

8BSBEeUMeBRReBR

(1983), the Arizona Supreme Court recognized that constitutional

violations occur when the application of a statutory

aggravating circumstance is not sufficiently narrowed by the

state court to provide for suitable sentencing discretion, or

when "the state tribunal may stray in an individual case from

an otherwise constitutionally narrow construction.”

Petitioner submits that his case demonstrates that the

“especially heinous, cruel or depraved” aggravating circun-

stance of A.R.S. § 13-706(F)(6) violates the Fifth, Eighth

and Fourteenth Amendments as being vague and overbroad on its

face, as well as in its application in the instant case.

Becavse the application of this standard to the facts of his

case reveals constitutional infirmities under both Gregg and

Godfrey, Petitioner will begin this discussion witl. the

constitutiona’ violation inherent in the application of the

standard to his individual situation

¥ The application of the “especially heinous” standard

is violative of the Eighth and Fourteenth Amendments uncer

Godtrey.

The trial judge who sentenced Petitioner to death

originally found that the crime was committed in an "especially

cruel and heinous” manner. A.R.S. § 13-706(F) (6) .-

The Arizona Supreme Court has defined “especially

heinous, cruel or depraved as follows:

“heinous: tefully or shockingly evil; grossly bad.

(refers to Defendant's state of mind).

cruel: disposed to inflict pain esp. in a wanton,

insensate or vindictive manner (refers to pain suffered by

victim).

depraved: marked by debasement, corruption, perver-

sion or deterioration. (refers to Defendant's state of mind) .”

State v. Gretzier, Ariz. , 659 P. 24 1, 10 (1983);

State v. , 114 Ariz. 531, 543, 562 P. 2d 704, 716 cert.

; -p. 906 (1977).

’ The Arizona Supreme Court plurality determined in this

2 case that the trial court erred in its "especially cruel”

3 finding, since under prior Arizona caselaw there was no

» evidence in this case that the victim suffered undue pain

. before death, the required definition of “especially cruel."

State v. Gretzler, surpé.

' “& The plurality also found, however, that the crime was

. committed in “an especially heinous” manner, and that the

° trial court could have found it to have been committed in an

455 "especially depraved" manner as well. The two justices hoidin

Li this opirion indicated that the fact the victim was run over

= twice, each time from a different direct.on, established

pes the particular state of mind required for this finding.

"7 | Richmons, supra, at 666 P. 22 64

46 The majority of the Court, however, di isagreed ¥ with this

te finding, holding that at prior rizona caselaw demonstrat ed that

és the acts in this case could not fit in any fashion under the

de finitions of A.R.S. § 13- 706(F) (5) .

The reasoning and analysis of prior rizona caselaw which

“ the majority undertook, see Richmond, supra, at 666 P. 2d

‘3 66-69, closeiy parallels the analysis by this Court in

“3 Godfrey in that ia both cases comparison was made between

prior cases in which the particular statutory aggravating

4 factor was properly applied and its application ir the

7 case under review. See Godfrey, supra, at 446 U.S. 428-433.

” The conclusion reached by the majority of the Arizona Supreme

5 Court in the instant case was that there war absolutely no

evidence suggesting that the driver of the vehicle knew or

29 ————

should have known that the ftrst pass—over the victim crushed

Da eee mmmennmern sae

his skull and killed him. In other words, the majority

31 —

-10-

concluded that the evidence did not establish the necessary

facts which would put Petitioner under the definitions of the

aggravating circumstances at issue. Given the doubt amongst

the Court on this point, Petitioner submits that application

Le - —

of this aggravating circumstance is unconstitutional State v.

Valencia, 132 Ariz. 24, 645 P. 2d 239 (1982).

Indeed, a comparison of the instant case with other

Arizona death penalty cases demonstrates the high degree of

error involved in this matter. In State v. Gerlaugh, 134 Ariz.

16é, 654 P. 2d 800 (1982), supp. opinion 135 Ariz. 89, 659

P. 2d 642 (1983), the defendant had run his car over the

victim several times, then exited the vehicle and stabbed the

still-living victim some 30-40 times with a screwdriver.

In its supplemental opinion upholding the death penalty,

2 unanimous Arizona Supreme Court held that the “especially

heinous, cruel or depraved” aggravating circumstance was

clearly established.

In State v. Grahan, isis. ..., S602: 2d 460 (1983),

the Court rejected the trial court's finding that the

defendant acted in an “especially heinous or depraved”

fashion, despite evidence from witnesses that the defendant

smiled as he teld them that the victim “squealed like a

rabbit when shot.” Because of the alleged immaturity of the

defendant and his denial of the statement, the Court deter-

mined that the aggravating circumstances was not established

and vacated the death penalty in favor of a life sentence.

Unlike Gerlaugh, where the evidence clearly demonstrated

that the defendant ran over the struggling victim several

times with the vehicle, the evidence in this case showed that

the victim died immediately after the car initially struck hin.

ohi«

838s 8 8k BkBR

—

In sharp constrast to both Gerlaugh and Gicnam, there is

absolutely no evidence in this case that Willie Richmond

acted with the state of mind appropriate for finding that

he was “especially heinous or depraved" at the time of the

murder. With this point, a majority of the Arizona Supreme

Court agrees, so much so that the concurrence held that

“this crime is therefore not above the norm of first degree

murders." Richmond, supra, at 666 P. 2d at 68.

Thus, Petitioner submits that application of tais

aggravating circumstance to his case by the plurality con-

stitutes a violation of Godfrey.

* The aggravating circumstance is unconstitutionally

broad and vague on its face as emonstrate y the application

in this case.

In Gregg, this Court indicated that before a death

penalty can pass constitutional muster, it must be shown

that application of the statutory sentencing scheme is

sufficiently narrowed to avoid arbitrary and capricious

decision-making as to who should or should not receive the

ultimate sentence.

Can there be any greater indication of the uncertainty

and vagueness of Arizona's “especially heinous, cruel or

depraved" aggravating factor than the history of its

application in the instant case? The litany of differgnt

applications of this aggravating factor begins with the trial

court's conclusion that the murder was “especially cruel

and heinous."

All five justices of the Arizona Supreme Court, sitting

as independent reviewers of the facts, agreed that the murder

in this case is not "especially cruel." Two members felt it

was “especially heinous,” and probably "especially depraved."

The majority, however, believed that none of these factors

were established, and that therefore Petitioner's crime

did not rise above from the norm” of first degree murders.

In Proffitt, supra, this Court approved application of

Florida's standard of “especially heinous, atrocious or

cruel.” Proffitt, supra, at 428 U.S. 255-256, 49 L. Ed. 2d

924-925. In so doing, however, this Court was not faced with

a situation as new exists in Arizona's application of a

similar standard in this case. Indeed, as has been noted,

Petitioner's is the first case in Arizona in which a

majority of the state supreme court held that the aggravating

factor was not established, yet still upheld the death penalty.

In at least two cases, as set forth earlier, the Court

vacated the death penalty after holding that the sentencing

judge erred in finding this aggravating factor was established,

despite the fact that there existed other factors which were

properly found by the trial judge. State v. Watson, supri;

State v. Brookover, supra.

Indeed, as noted by Justice Feldman in dissent in this

case, a comparison of Petitioner's case with that of Watson

demonstrates an undeniable conflict in even-handed application

of this aggravating circumstance. Richmond, supra, at

666 P. 2d 69-71.

Petitioner therefore submits that this Court should,

consistent with Godfrey and Gregg, order that the death penalty

be reduced to life in prison. However, at the very least

Petitioner submits that this matter be remanded for resen-

tencing without this aggravating factor.

As has been noted_—this-particular aggravating circum-

stance carries special weight in Arizona's death penalty

pee ee

-13-

sentencing scheme, since it is the factor which separates the

death penalty case from that of a “normal” first degree murder.

In State v. Gillies, _ Ariz. __, 662 P. 2d 1007 (1983),

the Arizona Supreme Court found that three of the four

aggravating factors found by the trial court were improper,

and therefore decided that the matter must be remanded ‘for

resentencing despite the proper finding that the murder was

“especially heinous, cruel or depraved.”

Petitioner submits that even if the other aggravating

factors in this case were properly demonstrated, resentencing

is necessary because the one factor which elevates a “normal”

first degree murder from an “abnormal” (and thus death-

qualifying) murder was not constitutionally found. Obviously,

if the Arizona Supreme Court believed it necessary to remand

for resentencing in Gillies where this factor was said to have

been correctly demonstrated, it is only logical that remand

is required where the factor was not properly demonstrated.

Petitioner therefore requests that his death sentence either

be vacated to life or remanded for resentencing without the

“especially heinous or depraved" finding.

c. THE DEATH PENALTY CANNOT CONSTITUTIONALLY BE IMPOSED

WHEN THE SENTENCING COURT CANNOT MAKE A DEFINITIVE

RULING AS TO THE ESTABLISHMENT OF SIGNIFICANT MITIGATING

CIRCUMSTANCES, WHEN SUCH CIRCUMSTANCE IS SUPPORTED BY

CORROBORATED, UNCONTRADICTED EVIDENCE

In Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71

L. Ed. 2d 1 (1982), this Court held it unconstitutional for

a trial judge, sitting on a death penalty sentencing, to refuse

to consider as a matter of law mitigating evidence of the

defendant's troubled background. See also Lockett v. Ohio,

438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978).

In this case, the trial court, while not precluding the

FV a

Ree vi.

Yetatyn

presentation of uncontradicted, corroborated evidence of

Petitioner's remarkable change in character, concluded that he

could not make a “definitive finding" as to whether such

evidence established a mitigating circumstance.

In its independent review, four justices on the Arizona

Supreme Court concluded that the trial court did not err in

not reaching a conclusion as to the establishment of the

mitigating circumstance, and also decided that Petitioner's

past criminal record and the fact that his character had

changed “in a very controlled [prison] environment" permitted

application of the death penalty. Richmond, supra, at 666

P 2486. Petitioner submits that the Eighth and Fourteenth

Amendments are violated when 4 sentencing judge fails to com>

| sider as a mitigating factor uncontsadtored, corroborative

evidence of the change in the defendant's character and that

remand for resentencing is therefore required.

In State v. Watson, 129 Ariz. 60, 628 P. 2d 943 (1981),

the Arizona Supreme Court held it a requirement under the

Constitution and this Court's decisions in Godfrey and Gregg

that such mitigating evidence be considered by the sentencing

indeed, such evidence which contributed to 4

court. It was,

large degree to the Court's decision to vacate the death

sentence in Watson.

In the instant case, there is no question but that the

evidence presented was uncontradicted--the only question was

whether the sentencing judge could somehow disregard the

evidence and fail to take such evidence into account in

assessing the propriety of the death penalty. In Eddings,

. A.R.S. § 13-703(g) provides that mitigating circum-

stances can include “any aspects of the defendant's

character."

-15-

' this Court clearly indicated that a trial court was not

2 permitted to preclude, as a matter of law, the presentation

. of such evidence. Petitioner submits that the issue of

“ whether the sentencing authority could permit such evidence

. to be presented and then fail to make a finding that the

. mitigation was established is fairly presented by this c*se.

J In Eddings, this Court determined that the senter /r,

. and the reviewing state court, is permitted to deter .ne the

° weight to be given to such mitigating evidence. E- dings,

7 supra, at 455 U.S. 115-115, 71 L. Ed. 2¢ 11. However, in the

e instant case, despite rhe fart thar the evidence was uncon

tradicted, the trial court decided that it could not accept

* such evidence as establishing the sought-after mitigation

o This, Petitioner submits, presents a clear constitutional

“5 error, and leads to the arbitrary and discretionary appli-

sy cation of the death penalty which Gregg and Godfrey sought

to eliminate.

x Indeed, when one reviews the rationale of the Arizona

Supreme Court. on this issue, the uncertainty inherent in the

- sentencing becomes more pronounced. In Watson, supra the

" Court concluded that the mitigating evidence of the defendant's

character change was so persuasive that it contributed to a

- large part in the imposition of a life sentence rather than

ys death. In the instant case, the Court reasoned that the fact

" Petitioner's character had changed while he was on death row

“s was something which the trial court could fairly consider in

. determining that it could not reach a definitive conclusion

"3 as to the establishment of the mitigating factor.

- What is immediately apparent, however, is that the same

‘ character change which so impressed the Court in Watson

-16-

occurred in precisely the same envirommert (i.e., death row)

as that which the Court in the instant case deemed

insufficient mitigation. Such inconsistency in the estab-

listment of mitigation is precisely the evil which this

Court has attempted to alleviate in cases such as Godfrey

and Eddings.

It is also clear, of course, that Petitioner's prior

murder conviction bore heavily on the Court's decision.

However, as noted by Justice Feldman's dissent in this case,

the failure to evaluate Petitioner's mitigating evidence,

particularly when such evidence went to the heart of the

question of the applicability of the death penalty to the

particular person to be sentenced, presents an unavoidable

constitutional problem. If the state supreme court gives

great weight to Petitjoner's past record, yet fails to

ee _ a : - “

adequately considér the change in his character, and even

affirms the vrial court's failure to make a definitive

ane

finding on this issue, how wan it be said that the death

—_—_——_

penalty jis being applied in an even-handed fashion?

This case squarely presents this issue. There is no

evidence in this case, nor was any offered, which suggested

that the defendant's change in character was not genuine,

and indeed, as noted by Justice Feldman, the character change

occurred well before Petitioner could have gained from such

change, since the death penalty had not yet been overturned

in Arizona. Richmond, supre, a 666 P. 24 70. The evidence

of Petitioner's change in character was uncontradicted and

corroborated by several sources, including prsion guards and

counselors. The trial court decided that it could not

definitively accept such evidence, despite the fact that it was

aiFe

78s 8 3 8 Rewer

uncontradicted. The Arizona Supreme Court affirmed this

failure to make a decision, and did so for reasons that are

not supportable. Under such circumstances, Petitioner submits

that failure to consider such evidence as a mitigating factor

requires this Court, as it did in Eddings, to remand this

case for resentencing.

D. THE DEATH PENALTY IS UNCONSTITUTIONALLY APPLIED WHEN

ONE MEMBER OF THE STATE SUPREME COURT, SITTING AS A BODY

INDEPENDENTLY REVIEWING THE PROPRIETY OF THE SENTENCE,

DISSENTS FROM AFFIRMANCE OF THE DEATH SENTENCE, WHEN THE

STATE HAS A CONSTITUTIONAL PROVISION REQUIRING UNANIMOUS

JURY VERDICTS

Article 2, § 23 of the Arizona Constitution provides, in

pertinent part, that "In all criminal cases the unanimous

consent of the jurors shall be necessary to render a verdict.”

While the Arizona Supreme Court is obviously not a jury

per se, the fact remains that the Court has reserved for

itself, in death penalty cases, a function which is akin to

a trier of fact in determining factual issues and resolving

the appropriate punishment from such resolution. The Court

has indicated that it conducts an independent evaluation of

the evidence in support of the finuing by the sentencing

tudge that the death penalty is appropriate, a finding under-

taken in the instant case. State v. Richmond, supra, at 666

P. 2d 65; {rate v. Blazak, 131 Ariz. 598, 643 P. 2d 694 (1982),

This is consistent with A.R.S. § 13-703 which requires the

Gentencing judge) to ascertain the propriety of the death

penalty by examining the evidence in support of the various

aggravating and mitigating factors, and then determining

whether the death penalty is appropriate.

Petitioner submits that the result of the state supreme

court's independent examination of the evidence in this case

runs afoul of Arizona's constitutional requirement fo

-18-

G Are

ver had changed We Go not beheve thus

position was unreasonable The tral court

was able to obeerve appellant al the reseo-

tencing hearing and listen to hus Lestimony

The tnal court was also aware appellant

had been in @ very controlled envirosment

while hut alleged change of character took

place, with much Ww gain from hw good

behavior. Additionally the judge had evi

dence before hum of Une lifestyle appellant

led before hu incarcersuon, including the

fect he was involved w another murder

These facts cast sufficent doubt upon ap

pellant’s veracity so the inal court could

reasonably decline to find the proffered evi-

dence to be & mitigating factor The court

further found that Ubere were no milugal-

ing crcumsiances suffimentl) subslantaal lo

cal! for kemency

We beheve the mitigation offered by ap

pellant = not suffimenUy substantial to oul-

weigh Ube aggravating arcumstances Par-

ueularly we note the fact Unat thu & pot

the first murder which appellant has perpe-

trated, as wel) as Lhe gruesome manner in

which this murder was committed The

death senlence = approprmale im tus case

PROPORTIONALITY REVIEW

(22) ‘We stated in State v. Richmond,

114 Ara 186, 560 P2d 41 (1976), cert ae

pied 433 US 915,97 SCu 268, 53 LEd 2d

1201 (1977), that we will conduct « propor-

uonality rewew to Gelermine “whether the

sentences of death are excessive or dispre

portuonale to Ube penalty imposed in simular

cases, comsidering both the arime and the

defendant” Jd, 114 Ariz at 196, 660 P2d

ai 51. We have considered other cases in

which tbe defendants robbed and murdered

their vicums and received the death penal-

ty. State v. Gretzier, supra, State v. Clark,

supra; State v. Jordan, supra; State ¥

Ceja, 12% Ara B, 612 P2d 21 (1980),

State v. Evans, 120 Ara 158, 564 P20 1149

(1978), sentence aff'd, 124 Ara 626, 606

P2d 16, cert denied, 49 US #1, 101 SCL

22 6 LEd 2d 119 (1980) We find that

the resoluuon in Ube instant case w not

dusproporLonale lo bese cases

6 PACIFIC REPORTER, 34 SERIES

Appellant likens his case to State v Wat

gon (11), 129 Ariz 60, 28 P.2d £43 (1981),

where we set aside the death sentence

Both cases involve a robbery and subse

quent murder Both defendants presented

as milgation evidence of a significant

change in thew character for the better,

and both defendants received harsher sen-

lences than their accomplices However,

lhe aggravalng carcumstances are very duf-

ferent im that the offense in Watson was

not found to be especually heinous and de

praved Moreover, the defendant in Wat

son had only one prior conviction for rob

ber), while appellant in Une instant case has

pnor convicuons for both kodnapping and

murder in separate incidents. Addiuonally,

in Watson Unere were other compelling fac

lors in mulugsuon—the age of the defend

ant (21) and Une fact that the vicum was

armed and fired the first shot We believe

the differences in Ube cases are so mgnifr

cant that the different resoluUons are nec-

essary

CONSTITUTIONAL CHALLENGES

[23] Appellant challenges the constitu-

tuonality of the Anzona death penalty stat

ute claiming the statute, on its face and in

application, is violative of the eighth

amendment in that it allows for arbitrary

and capricious determinauons We have

previously conmdered and rejected ths &

sue State v. Gretsler, supra; State v. Bis

sak, supra; State v. Richmond, supra

[24] The death penalty was challenged

by appellant in a Rule &2 petition for post-

conviction relief on the ground that ip Ar+

gona this penalty hes been imposed m 8

manner discrimimatory against binck per-

sons. This post-conviction rehef wes demed

and we granted his petition for review

which we consolidated with this appeal In

addition. appellant claims be was denied

due process of law when the court refused

. to bold a bearing on this claim. In a mumilar

argument appellant claums Use desih penal

ty has been visited upon poor persons and

maic persons in chsproporuenale sumbers

We agree with the state's assertion that

neither the federal constitution sor ths

$ss 83 828 ® BB

unanimous jury verdicts and, accordingly, the Sixth ¢

ard Fourteenth Amendments. Given the fact that one justice

_—

of the Court believed that the death penalty should not be

imposed, and did not sign the warrant of execution, a less

than unanimous “jury” verdict has resulted.

This poses constitutional problems in several ways. In

Proffitt v. Florida, 428 U.S. 242, 252, 96 S. Ct. 2960, 49

L. Ed. 2d 913 (1976), this Court indicated that the

Constitution did not require jury sentencing in capital cases,

and noted that sentencing by a judge should lead, if anything,

“to greater consistency” in imposing the ultimate penalty.

In Johnson v. Louisiana, 406 U.S. 356, 364-365, 92 S. Ct.

1620, 32 L. Ed. 2d 152, 160-161 (1972), this Court held it

proper under the Due Process and Equal Protection Clauses for

— ——— 7. J

a State to permit a criminal conviction with less-than

unanimous juries. See also Apodaca v. Oregon, 406 U.S. 404,

92 S. Ct. 1628, 32 L. Ed. 2¢ 184 (1972). In so doing,

however, the Johnson Court noted that Louisiana properly

seguired unanimous verdict in capital cases, given the

severity of the punishment at issue.

In the instant case, the consistency which must be the

hallmark of constitutional imposition of the death penalty

is absent from the Arizona Supreme Court's opinion, both in its

review of the trial court's decision as well as its independent

evaluation of the propriety of the sentence.

Petitioner submits that, under these circumstances,

the Sixth Amendment and the Equal Protection Clause and Due

Process Clauses of the Forrteenth Amendment are violated.

Had Arizona reauired jury sentencing in capital cases, and had

one of the jurors felt as did Justice Feldman in this matter,

-19-

then the constitutional provision barring less-than-unanimous

4 jury verdicts in criminal cases would have prevented applica-

: tion of the death penalty in this case. However, given the

, fact that Arizona's death penalty scheme utilizes a trial

: judge with independent review by the state supreme court,

the fact that one justice does not believe the death penalty

. should be imposed offers Petitioner no solace. This,

. Petitioner submits, constitutes a violation of both the Sixth

in Amendment right to trial by jury as well as the Fourteenth

| Amendment violation.

- In Proffitt, it was in large part this Court's reliance

m upon the consistency of a sentencing judge which permitted

* non-jury sentencing in capital cases. This case resents what

is an important example of a situation in which sentencing by

a judge, in a state requiring unanimous jury verdicts, has the

effect of depriving a defendant of those rights granted to

similarily-situated individuals in jurisdictions where the

jury recommends the sentence.

Fimally, while this argument is based ir part upon a

state's constitutional provisions, this should not preclude

review by this Court. Where mixed state and federal con-

stitutional law questions exist, and where the issue which

arises deals with a federal constitutional violation inherent

in the state's application of its own constitution, Petitioner

submits that proper grounds exist for review. See Michigan v.

Long, ___ U.S. __,, 103 S. Ct. _, 77 L. Ed. 24 1201, 1212-

1216 (1983).

-20-

CONCLUSION

Petitioner requests that the petition for certiorari be

granted

RESPECTFULLY SUBMITTED this — day of September,

1983.

Law Offices -

P=MA COUNTY PUBLIC DEFENDER

— 6:

) —

4s y

BY uu Py) OK st.

ed ry

Attorney for Petitioner

APPENDIX A

(1)

666 P.

2d 57

(1983)

STATE +. RICHMOND

na ne OO Pe 7 Arm Ey

ett

call

sith

‘sel

its

}

imposed im simular cases, and (11) death

penalty statute, oa its face and ia applica

Uoa, # constutuuonal ;

Cameron, J. specially concurred with

opwmioa im which Gordon, V.CJ, coscurred

STATE of Arizona, Appelice, 1. Constitutional Law = 265

’ Uve process requires that defendant be

, ised of specific charges against him;

Willie Lee RICHMOND, Appellant ade . :

58 Arz

Amend 6, ARS §§ 16-451 tw 13-453 (Re

peaied)

3. Criminal Law © 996(2)

Six-year delay in resentencing of de

fendant did not depnve defendant of const:-

tutional nght to speedy thal, im that nght

lo speed) tna! does not extend Wo sentenc-

ing USCA Const Amend 6

4 Criminal Law 1177

Defendant was sot prejudiced by aix-

year delay in resentencing where such delay

resulted in defendant having opportunity to

present additions! evidence as segation of

sentence, and sentence be received al resen-

tencing was no harsher than omginal sen-

tence

_ 5. Constitutional Law

27% 1)

Criminal Law 159

Resentencing of defendant was not vic

lauon of ex post facto prohibiuons, double

jeopardy prohibiuons, nor of due process

and separation of powers requirements

USCA Const Art 1, §§ 9, cd 3, 20, cl 2.

Amends 5, 14

6. Jury @ UA

Tra! court's resentenang of defendant

did not deny defendant his alieged consutu-

tonal mght to have jury decide presence of

aggravaung or miligsung arcumslances

7. Constitutional Lew = 77&(1)

Once defendant has been found guilty

beyond « reasonable doubt, due process

not offended by requimng defendant lo e

tablish mitagaung arcumstances, es facts

which would tend t show mistagation are

peculiarly within knowledge of defeadact

US.CA ConstAmend 14

& Judges @=47(2)

A tiugant is entitied to impartial judge

at any stage of proceedings; however, ths

does not include a judge totally ignorant of

previous proceedings

9. Constitational Law 771)

Criminal Law & 1165(1)

Where defendant who was resentenced

presented mo evidence that sentencing

judge entertained actual bias or prejudice

@70.1(10), 233,

666 PACIFIC REPORTER, 2¢ SERIES

against bim, defendant failed to abow pre)-

wdice or deprivation of due process US

CA Corst Amend 14

10. Criminal Law @1134(8)

In each case where death penalty »

imposed, Supreme Court will conduct inde-

pendent review of record to assure just

result °

ll. Hearer4. 70

In first<degree murder prosecuLon, evr

dence tha! defendant played integral parts

in events which caused vicum's death, will

ingly assisted in acts whch were intended

lo cause vicum's death, and that be drove

vebcle that was used & kill wiclm was

suffioent to sapport finding that defendant

intended to take a life ARS §§ 18-45)

w 13-453 ( Repealed)

In sentenang defendant convicted of

murder, wai court did not err wm finding

pror murder convicuon to be aggravaung

earcumstance, even Uhough defendant was

convicted of prior murder subsequent to

convicuon in instant case. ARS. § 13-708,

subd F, par 1

13. Criminal Law & 120K5)

For purposes of applying statute mik-

ing commussion of offense in especially bes

nous,“crue! or depraved manner an eggre-

valuing arcumstance, in first-degree murder

prosecution, “ervelty” involves victim's pain

or suffering before death ARS § 13-

203, subd F, par. 6, §§ 13-46] 12-453

um suffered more pain than that of initia!

blow which rendered him unconsmous, and

STATE v. RICHMOND

Ara 59

Cue os 066 P26 5? (Ara 1983)

1S. Homicide 14

As used in statute making it aggraval-

ing cittumstance to commaet offense in espe-

cially heinous, cruel or depraved manner,

“heinous” and “depraved” involve mental

state and attitude of offender as reflected

im his words and actions, factors to be

considered include inflicuon of gratuitous

violence on vicum, and needless mutilation

of victim ARS § 13-708, subd P, par 6

See publication Words and Phrases

for other judiaal constructions and

éefinsvoas.

16 Homicide = 34

Where murder vicum was rua over

twice and his skull crushed, such was ghasl-

ly mutlauoa of vicum sufficent lo support

finding that offense was committed in espe-

cially heinous and depraved manner, for

purposes of statute making it aggravaling

circumstance to commit offense in especial

ly he:mous, cruel or depraved manner

ARS § 13-703, subd FP, par 6, $4 13-451

to 13-453 ( Repeaied)

17. Criminal Law © 120K6)

Presence of amy one of elements of

cruelty, hemousnesa, or depravity & suffi-

cent w consulule aggrivalng curcuc

stance under statute making it aggravaung

circumstance to commmut offense in especiabk

ly hemous, cruel of depraved manner.

ARS § 13-708, subd PF, par 6

18 Homcide 344

In resentencing defendant, convicted of

first<tegree murder, (nal court did not err

in fasliag to find hus improved conduct and

character lo be milugaling circumstance,

though it would have been arbitrary decr

seon had court refused to consider he err

dence, t was sufficrent that court did con

sxder the evidence but found « unpersua-

sive ARS. §§ 13-451 to 13-453 (Re

peated)

19. Criminal Law @1134(8)

In death penalty cases, Supreme Court

will conduct independent examination of

record to determine for itself the presence

or absence of aggravauing and muligaung

circumstances and weight to give to each,

and will independently determine propnety

of the sentence ARS § 13-703

20 Home ide 14

ln resentencing defendant, convicted of

furst-<degree murder, inal court correctly

found aggravaling “=rcumslaoces thai de

fendant had been coe victed of offense, mur

der, for which fe imprwonment or dead

was imposable, that defendant had beea

convicted of felony involving use or threat

ef violence, and that offense was commutied

in espenally heinous manper. ARS § 13-

708, subd F, pars 1.26

21. Homicide = 14

Evidence supported tral court's finding

that character of defendant, convicted of

(irst<degree murder, had sot changed -_

Lween ume of convicuoa and resentencing,

and thus, such was not muitigaling factor

sufficent to oulweigh aggravaliag arcu

stances warranting death sentence ARS

§§ 13-451 wo 13-455 ( Repealed)

22 Homicide 34

In ‘urst<legree murder proseculioa, im

pos:tioa of death penalty was not duspropor

tonale lo penalty umposed om simular cases,

vn which defendants robied and murdered

they victims ARS §§ 13-451 w 13-453

( Repealed)

2 Criminal Law @ 123

Homicide & S51

Death penalty statute, om “s face and

in application, does aot allow for artytrary

and capmerous determinations, and = thus

not volative of Eighth Amendment

ARS § 13-703; USCA ConstAmend &

2 Criminal Law 12081)

Neither Federal Constitulioa nor Ara

na Supreme Court require thal umposlos

of death penalty precisely reflect compusr

uon of general populauioa

2S. Criminal Law & 1206)

Before one is subject to death penalty,

stale must charge him and prove him guilty

beyond reasonable doult, and must prove

aggTavaling circumstances be yoad reasona-

ble doubt.

60 Arz

26. Criminal Law © 1134(8), 1208/6)

When death penalty i imposed, tnal

court may find mitigating factors substan-

tial enough to call for leniency, and Su-

preme Court will then conduct independent

review of all matters of aggravation and

mitigation to determine if death sentence

was properly imposed, and will conduct pro-

porvonality review in every case lo assure

penalty i nol excessive nor disproporuon-

ale to sentences imposed in similar cases,

such safeguards are biind to color, wealth

or sex of defendant

Robert K Corbin, Atty. Gen by William

J Schafer 111, and Jack Roberts, Asst Atty

Gen, Phoemax, for appellee

Richard S Oseran, Former Pima County

Publi Defender, Fredenc J. Dard, Pima

County Puble Defender by Allen G Mink-

er, Tucson, for appellant

HOLOHAN, Chief Justice

Appellant, Wille Lee Ruchmond, was

found guilty of first degree murder on Feb-

ruary 5, 1974, and was sentenced to death

This court affirmed the conviction and the

sentence in State v. Richmond, 114 Anz

186, 560 P2d 4) (1976), cert dened, 433

US 915, 97 SCi. 268, 83 LEd 2d 110)

(1977) However, we later vacated the

death sentence pursuan: to State v. Wat-

gon, 120 Ara 441, 586 P2d 1253 (1978), cert

denied, 40 US 84, 8 SQ 124, 59

L.Ed 2d 478 (1979), and remanded for resen-

tencing

After s sentencing hearing, appellant

again was sentenced to death, from which

sentence be now appeals Additionally, ap

pellant asks tat we review the denial of his

petition for pest-conviction relief. We have

jurwediction pursusst to ARS § 13-403)

and Rule $29, Arizona Rules of Criminal

Procedure, 17 ARS

The conviction arose from s 1978 incident

where appellant and his l5-yearold gii-

frend, Faith Erwin, accompanied Becky

1. These are section sumbers under the old

6% PACIFIC REPORTER, 24 SERIES

Corella and Bernard Crummett to a Tucson

motel. Becky had arranged to perform an

act of prostitution with Crummett Becky

informed appellant that Crummett was

“loaded.” Appellant deaded to rob Crum-

mett.

Appellant accompanied by the two wom-

en and Crummett drove to a deserted area

outside Tucson ostensibly for Crummett to

engage in another act of prostituuon with

Becky. Appellant stopped the car feigning

a flat tire. Appellant ahghted from the car

and went to the passenger side where he

pulled Crummett from the car. Appellant

knocked Crummett to the ground, and, as

Crummett lay on the ground, appellant hit

bir with several large rocks, causing Crum-

mett to lose consciousness Becky took the

victim's watch and wallet from his pockets

Appellant and the two women left Crum-

mett lying unconscious on the ground, but,

before leaving, the vehicle was twice driven

over hum. \

Medical testimony revealed that Crum

mett died of a compressive injury to the

skull consistent with the excessive force of

a wheel of es car. At trial Faith Erwin

testified that appellant was the driver of

Une automobile when it was driven over the

victim. Appellant claimed that Becky Co

rella was the driver.

NOTICE

[1,2] Appellant daims « violation of hs

sixth amendment right to know the nature

and cause of the accusation against him

because the information did not put him oa

potice that be could receive the death penal

ty, nor did it state what aggravating fac

tors would be presented. Appellant did not —

raise this issue at the time he appealed his ©

conviction, but, as we are required, pursu-

ant to ARS. § 13-4085, to search the reo

STATE +. RICHMOND

Are 6]

Cue os 006 P26 87 (Arm 1983)

guilty of murder im Une first degree shall

suffer death of imprwonment in Lhe slale

for life” in State v. Blazak, 13)

Aria. '88, 643 Pld G04 (1982), we addressed

the wsue raised by appellant, and we held

that as indictment charging first degree

murder was sufficeat on its face to inform

the defendant of the crimes charged and

the sentences which could be umposed 9 Due

process requires that 8 defendant be ad

vised of the specific charges agunst lum

The information in Utus case gave appellant

adequate notice of the charges. There s 20

requirement that a defeodast be advued w

the indictment or unformauuon of the slalu-

tory penalty, or Unat be be advued whai

aggravacog circumstances will be present

ed at sentencing in the event of a convic-

tion.

SPEEDY TRIAL

[3] Appellant was first sentenced to

death in February of 1974 He was resen-

tenced to death in 1980 Now appellant

claims be was dened hus mght to a fa and

speedy sentencing, and that he wse preju-

diced by the mx-year gap whack deprived

him of the abuity to effectively present he

case for mitigauon We addressed ths &

sue in State v Blazak, supra, where we

stated, “{n}either this court nor the United

States Supreme Court has found thal the

nght to a speedy inal extends to sentenc-

ing.” 131 Ama at 600, 643 P2d at 5,

citing State v. Stee/man, 126 Ara 19, 612

P 2d 475 (1980)

[4] The delay resulted in the appellant

having an oppurtunity to present add) uomal

evidence as muuugation Addiuonally appe

lant has failed to show how he was preju-

diced. He was afforded the opportunity lo

present his onginal miligaling evidence as

well as any additional mitigating factors

which may have been omitted im the first

sentencing heamng or which have arses

since that hearing. The sentence he re

ceived at his resentencing was no harsher

than the omginal sealence. We are unabie

to find any prejudice resulting from the

delay.

RESENTENCING UNDER WATSON

[5] Om numerous cccgnons the court

has heard and rejected arguments that re

sentencing under State vy. Watson, 120 Ara

441, 586 P 2d 1250 (1978), cert denied 440

US 924 9 SCL 134 @ LEd2d 478

(1979) @ anconstitutional Appellant a>

serta several grounds for thw argument

claiming Ube resentencing w: (1) & violahoa

of ex post [acto prohibiuons; (2) a nolatioa

of double jeopardy prohibitions; and (3) 8

vrolauon of the due process and separaloe

of powers requirements because it # & Jud

cally created penalty. We have aidressed

these sues many umes before with resolu

uoas adverse to appeilamt. State v. Gret>

ler, 135 Arca. 42, 659 P.2d 1 (1983), State v

Blacak, 131 Ara 598, 643 P.2d G4 (1982),

State v Jordan, 126 Ara 283, 614 P 2d 83,

cert. denied, 49 US 986, 101 SC 408, 66

L.Ed 24 251 (1980) «These arguments have

also been considered and rejected by the

Ninth Circuit Court of Appeals in Knapp v

Cardwell, 667 F 2d 1253. cert dened, ——

Us 103 SCt 473, 74 LEd2d 621

( 1952)

SENTENCING CHALLENGES

[6,7] The sentencing procedure 3 com

tested by appellant on three other grounds

First. that he was demed his alleged const»

tutional nght to have a jury decade the

presence of aggravating or miligaling cu~

cumstances We have previously rejected

this argument. State v Gretzler, supra,

State v Blazak, supra; State v. Watson,

supra Second, appellant contends it un

constitutional to place the burden of proof

of miugaling arcumstances on the defend-

ant. Once the defendant has beea found

guilty beyond a reasonable doubt, due proc-

ess is not offemied by requiring the defend-

ant to establish motugalng circumstances

As we stated in State v. Smith, LS Are

412 416, 610 P2d 46, SO (1980), “[fjacts

which would tend to show miligalon are

peculiarly within the knowledge of a de

fendant.”

Third, appellant claims he was demed hu

right to be sentenced by an impartal iner

of fact This contenuoa w based on evr

62 Arm

dence which was introduced at the onginal

sentencing At the frst sentencang hear-

ing, defense .unse! presented psychuiric

testimony Winch clamified appellant a .

sociopath or psychopath This condition

was described as one who never learns from

expemence, has poor umpulse control, bas 8

lack of mora! insight and shows very litte

guilt The psychiatnsts charecterucd ap

pellant as callous, gruasly selfish, wresponsi-

ble and impulsive This testimony was in-

troduced as miugalon

Under the Arizcna death penally sialule

in effect at the Ume, the judge could con-

sider only four enumerated [actors as mib-

gauon Ome 0! the slalulory muligaling

arcumstances was Unal “the defendant's ca-

pacity lo apprecialk the wrongfulness of hus

conduct, or to conform hw conduct Ww the

requirements of law was significantly im-

peired, bul not so umpaired as to consutule

a defense to prosecuvon.”* Th psychiainc

testimony was intended to show the exut

ence of this parucular mitigating factor

The judge did not find Uus factor to exist

Five years later, when thw court ordered

& resentencing, Une case was returned lo the

onginal tna) judge Appellant's request

for a change of judge was demed by the

presiding judge.* At the ume of the resen-

tencing, the Anzona death penalty statute,

ARS. § 13-703, required that the judge

who heard the case also conduct the seo-

tencing Stste vy. McDanel, 127 Ara 13,

617 P2d 1129 (1980) The statute has

recenuUy been amended to allow « judge

other than the tnal judge to conduct the

sentencing hearing if the tna! judge has

died, resigned, or become incapacitated or

disqualified

(8&9) A bugant » enuted to an umpar-

tial judge al any stage of the proceedings

See, State v. Barnes, 118 Ariz. 200, 575 P2d

830 (App 1978). However this does not in-

clude a judge totally wnorant of the previ-

ous proceedings Any judge who might

have conducted the resentencing in ths

case would have before him the record of

2 Former ARS § 13-454(F)!), renumbered as

ARS § 13-70KGxK))

66 PACIFIC REPORTER, 24 SERIES

the tna! and the onginal sentenang bear-

img Appellant presents no evidence thal

the sentenang judge entertained actual

bias oF prejudice against him. We stated in

State v Greenawalt, 128 Ara 150, 168, 624

P.2d 2h, 846 cert dened, 4 US 882, 102

S.Ct 364, 70 LEd 2d 191 (1981), “evidence

is not inadmussible sumply because it pains

a black picture of the defendant's character

or his bent for evil” Without some specific

showing of tuas on the part of the sentenc-

ing judge, we cannot say appellant was

prejudiced or deprived of due process

From time to time appellate courts send

eases back to a trial court for resentencing

The fact of resentencing w not 1. ’ficient,

standing alone, to infer bias or prejudice

The psychiatric evidence of the first mit-

gation hearing was not used im the second

hearing, and there was no reference to that

evidence im Une second hearing

[1@] Additonally. im each case where

the death penalty i imposed, thu court

conducts an independent renew of the rec-

ord to assure a just result We have re

viewed the record in tbe imstant case, and

find mo evidence of prejudice exhibited by

the sentencing judge

FELONY MURDER AND THE

DEATH PENALTY

The jury which convicted appellant was

instructed on both theornes of first degree

murder—premeditavoe aad felony murder.

The jury returned a verdict of first degree

murder. There is no indication ip the reo

ord whether the jury's verdict was based on

premeditavion or felony murder.

The appellant contends that under the

state of the record in this case the penalty

of death cannot be imposed The United

States Supreme Court recenUy discussed

the issue of felony murder in Enmund v.

Florida, —— US. ——, 102 S.Ct 3368, 73

LEd2d 1140 (1982) The Court observed:

& The mouon was demed because E was oct

timely made. We will, however, exagume Uus

contenuoe for fundamental error

STATE vy. RICHMOND

Ara. 63

Chee as 608 9.26 57 (Are otal

Enmund himself did not kill or attempt

to kill, and as construed by the Flonda

Supreme Court, the record before us does

not warrant a finding that Enmund had

any inteation of parucipaling in oF facile

taung a murder Yet under Flonda law

death was an authorzed penalty because

Enmund aided and abetted a robbery '2

the course of which s murder was com>

mitted.

Id. at ——, 102 S.Cu at 3377, 73 LEd 2d at

1152 The Court concluded that death was

not a valid penalty for one who neither Wok

life, attempted to take life, nor intended to

uke Lfe

{11} By comparison, in the instant case

appellant war an active paruapant Appel

lant admitted he planned the robbery, drove

the victim into the desert and knocked the

yvieum unconscious to rob him. Faith Er-

win testfied that appellant threw rocks al

the vicum after he knocact him to the

ground. Bloody rocas were found at the

scene. The medical examiner testified that

there were two kinds of force apphed Lo the

yetim'’s skull—one whxh was consistent

with the automobue tre and another if

which there was external spplicauion of s

pointed object. There is, however, no evr

dence that the latter force alone would

have inlled the vicuim

Even uf we accept appellant's contention

that he was not dmving the car when the

victim was rua over, we do not believe this

~ase fails within the parameters of En

mund. The facts from the appellant's ver-

sion indicate that he was the leader of the

group; he was the first to use violent force

on the victim, he was aware that the vie-

tim, if allowed to live, could idenufy him

Appellant, from his version of the facts,

was willing to leave the wounded and uf-

conscious victim alone in the desert to an

uncertain fate. Appellant contends that

Becky Coreila was tne one who drove the

car over the victim There ws no evidence

that appellant protested or showed any

emotion when the victim was twice rua

over. The appellant's versio of the facts

indicates appellant played an integral part

in the events which caused the victim's

death, and he willingly assisted in the acts

which were intended to cause the victim's

death.

The evidence presented by the state was

that the appellant drove the vehicle over

the victim, thus killing hum. The testimony

of Faith Erwin was that the appellant was

the driver at the time the victim was rus

over. The circumstantial evidence supports

Faith's testimony. The arcumstances show

that appellant was the driver whea the

automobile Appellant was the leader of

the group and directed the operation, With

such support we believe the trial judge was

justified in conchuding that appellant drove

the vehicle that was used to lull the victum

Under either versioa of the facts appel-

lant does not fit within the sphere of de

fendants the Enmund court seeks lo protect

from capital considerations The evidence

in tms case shows that appellant intended

to take a life.

PRIOR CONVICTION

Appellant was convicted in the instant

case on February 5, 1974 He was convict

ed of another murder on August 9, 1974,

even though that murder had occurred be

fore une murder in the instant case. At the

resentencing in 1980 the State sought to use

this later conviction as an aggravaling fac-

tor. Appellant argues this was improper.

ARS. § 13-704 F) enumerates aggraval-

ing curcumstances which should be com

sidered in determining the imposition of the

desi penalty. ARS. § 13-70% FKL)

states that “the defendant has been convicl-

ed of another offense in the United States

for which under Arizona law a sentence of

life impnsonment or death was impusabie.”

1020 (1981), cert deaied, 456 US 984, 102

S.Ct. 2259, 72 LEd2d 363 (1982), appellant

contends the tnal court erred in finding thus

aggravauing curcumstance.

In State v. Gretzler, 135 Anz 42, 659 P.2d

1 (1983), this court stated:

64 Ar

Convicuons entered prmor to a sentencing

hearing may thus be considered regard-

leas of the order in which the underlying

crimes occurred, State v. Jordan, [supra,)

or the order in which the convicons were

entered [Stste y Valencia, 124 Arz at

139, 602 P.2d at 807, 809 (1979) }

Any language suggesting (he contrary ip

State v. Orta, supra, (131 Anz at 270-11,

639 P2d at 1035-36] w hereby dwap

proved In Ortuz, we found te tinal

court erred in considering ® conlemporsa-

neous convicuon for conspuacy lo commil

murder as aggravation for the murder

This exclusion frum consideration w best

understood as having been required be

caus: both convictions aruse out of the

same set of events

135 Ara at 57, n 2 659 P2d at 16.42

{12} In hght of the language mm Greu-

jer, the tra! court did not err in finding Une

pmor murder convicuon to be an aggraval-

ing circumstance

CRUEL AND HEINOUS

{13,14} The tral court found as another

aggravating factor thal the offense had

been committed in an especially cruel and

heinous manner pursuant to ARS § 13-

70K FXG) which provides “The defendant

committed the offense in an especially he:-

pous, crue! or depraved manner.” Appel-

tant contends thu was error

“Crue!” has been defined as “disposed to

inflict pain especially in a wanton, insensale

or vindictive manner sadistic” State v.

Knapp, 114 Ara 631, 543, 562 P2d 704

(1977), cert. denied, 435 US 98, % SCL

1458, 55 LEd2d 500 (1978). Cruelty in-

volves the victim's pain or suffering before

death State v. Gretsier, supra; State v.

Poland, 182 Ariz. 269, 645 P2d 7&4 (1982).

State v. Lujan, 124 Ariz 365, 604 P2d 62

(1979). The offense must be committed im

an especially cruel, heinous or depraved

manner to be considered an aggravaling

Greumstance State v Lujan, supra We

do not find the offense to be especially

crue!; there is no evidence in the record to

indicale the vicum suffered more pain than

666 PACIFIC REPORTER, 24 SERIES

that of the initial blow which rendered him

unhcom.oo0us

[15-17] “Heinous” has been defined as

“hatefully or shockingly evil; grossly bad,”

and “depraved” is “marked by debasement,

corruption, perverwon or deterioration.”

State v Knapp, supra Heinous and de-

praved involve the mental state and alt:

tude of the offender as reflected in his

words and actions State v. Gretzler, su-

pra, State v Poland, supra, State v. Lujan,

supra. in Gretzier, supra, we discussed fac-

tors which lead to a finding of heinousness

or depravity One factor is the infliction of

gratuitous violence on the vicum, another

related factor = the needles mutilation of

the victim. Here the vict ©: was already

unconscious and bleeding when he was run

over pot once, bul twice, each ume from &

different direcuon The evidence indicates

tbat the first run by Une vehicle was over

the victim's head crushing his skul! and

killing burn The second run of the vehicie

was over Ube body of tbe victim. The inves

tgating offers found, at Ube location of

the murder, two large pools of blood sepa-

rated by about 30 feet, which was consist

ent with the body having been run over and

dragged to where it was found Again the

fact that the victim im tbe instant case was

run over twice and his skull was crushed,

we find to be a ghastly mutilation of the

veum

The presence of any one of the three

elements—cruel, heinous, ar depraved—s

sufficsent to constitute an agyrarsting ar

cumstance Siste v. Bishop 127 Ara 531, -

622 P.2d 478 (1980) We ‘elieve the facts

of this case set it “apart from the normal

first degree murders” State v. Brookover,

124 Ariz. 88, 601 P2d 1322 (1979). The trial

court was correct in finding the offense was

committed in an especially beinous manner.

It is also evident that the trial court could

bave found that the offense was committed

in an especially depraved manner.

Appellant argues in the alternative that

the “ervel, heinous and depraved” language

of Arwona's death penalty statute is uncon

stitutionally vague and broad. We have

addressed this contention in State v. Grete

STATE v. RICHMOND

Ara +65

Cine as 088 P 24 87 (Arte 1083)

ler, supra, and found ne constuutuuonal iafu-

mity um the statute

The trial court judge did not find that

“the defendant committed the offense as 8

conmderation for the receipt, or in the ez-

pectatios of the receipt, of anything of pe

cuniary value” ARS § 13-700 FX5)

The tral court judge was under the mustak-

en belef that thus subsection only applied to

the “contract” type murder. Appellant was

sentenced on March 13, 1980 Ths as

prior te our decimon in State v. Clark, 126

Ana 428, 616 P2d 888, cert dened, 440

US 1067, 101 SCt 796, 6 LEd ad 612

(1980), where we specifically held that thid

aggravating arcumstance w# not limited to

the “hired gua” or “contract” type killing.

In Clark we stated that thu subsection ap-

ples to any murder committed for financial

gun

The state addressed this iasue if ils an-

swermng bref, but did not rawe the sue

through a crossappeal Thus, we need not

reach the issue of the propmety of thu court

finding an additional aggravating curcum-

stance which was not found by the tnal

court

MITIGATING CIRCUMSTANCES

{18} At the 1980 sentencing heamng ap

pellant presented evidence of his conduct in

pmson since 1974 when he first went to

jeath row Testimony was received from

members of appeilant’s family, hus fnends,

and from pnmson counselors which related

appellant's good character, the change in

altutude he has undergone and hus allempus

to better himself. Appellant contends the

tnal court erred in failing to find his im-

proved conduct and character to be a mith

gating curcumstance. Appellant cites State

v. Watson (Il), 129 Anz 60, 628 P 2d 943

(i981), where very similar evidence was

presented as mitigauon. There we held

that the evidence could and should be con-

sidered a mitigating circumstance. While it

would have been an arbitrary decision had

the court refused to consuder the evidence,

it w clear from the record the court did

consider the evidence but found it unper-

suasive.

INDEPENDENT REVIEW

(19,20) The sentencing statute, ARS

§ 13-708, provides that the death penalty

shall be imposed if the court finds one or

more aggravating circumetances and “Uhere

are no mit gang arcumstances suffimently

substantial to call for leniency.” In death

penalty cases, ths court will conduct as

independent examination of the record to

determine for ourselves the presence or ab-

sence of aggravating and mitigating or

cumstances and the weight to give cach

We also independently determine the pro

priety of the sentence State v. Gretzier,

supra, Mate + Blazak, supra The trial

court correctly found three aggravating cir

cumstances: first, that the defendant has

been convicted of an offense (murder) for

which life impmsonment o¢ death was im

posable, ARS § 13-7EXP1), second, that

the defendant has bee convicted of a [elo

ay (murder and kidnapping) wavoinng the

use or threat of violence, ARS § 13-

TOK F 2), Uhard, Unat the offense was com

mitted in an especially heinous manner,

ARS § 13-7UK Px)

As mitigating factors the court found

that both Rebecca Coretla and Fath Erwin

were involved in the cnme bul were never

charged, that the vicum had engaged in an

illegal act of prostitution with Rebecca Co

rella near the time of the offense and had

soheited an act of presutution with Faith

Erwin, a minor, near the time of the of-

fense. The court also found that the jury

@as instructed on the felony murder rule as

well as on matters related to premeditated

murder. Additionally, the court found ap

pellant’s family was supportive of him and

would suffer consderable gnef as a result

of the imposition of the death penalty

{21} ‘The tnal court did consider evi-

dence regarding appellant's change in char

acter, but was unable to make a definitive

finding on the matter. In State v. Watsoa

(11), supra, we heid that evidence revealing

a substanual improvement of a defendant's

character could be viewed as a miligauing

factor. In the case at bench the trial court

was not convinced that appellant's charac

STATE +. RICHMOND

Ara 67

Chae as 685 P26 5] (Arm 1983)

court has ever required that the impositioa

of the death penalty precisely reflect the

composiuos of the general populatica

What the United States Supreme Court has

required guidelines to bridle the discre

tuca of the sentencing authority, thus min>

muzing the risk of arbitrary imposition of

the death penalty. See Gregg rv. Georgia,

423 US. 158, 96 SC 2908, 49 LEd2d 850

(1976); Furmaa v. Georgia, 408 US. 238, 92

S.Ct. 2726, 33 LEd2d 346 (1972).

(25, 26} Before one is subject to the

death penalty in Arizona, the state must

charge him and prove him guilty beyond a

reasonable doubt Then the state must

prove aggravating circumstance(s) beyond a

reasonable doubt State v. Jordan, 128

Anz 233, 614 P 2d &25 (1980) The trai

court may then find mitigating factors sub-

stantial enough to call for leniency. Ths

court will then conduct an independent re-

view of all matters of aggravation and miti-

gation to determine if the death sentence

was property imposed. State v. Gretzier,

supra; State v. Rochmond, supra In addi-

tion, we conduct a proportionality review in

every case to assure the penalty w@ not ez-

ceasive nes Gworoporucaale to the sen-

tences imposed in similar casea. State ¥.

Gretaler, supra; State v. Richmond, supra

These safeguards are blind to the color,

wealth or sex of the defendant. We find no

merit in appellant's argument

We do not find it necessary to address

appellant's last contention that the death

penalty w a violation of international law

We have examined the entire record for

fundamental error, as required by ARS

§ 13-4035, and [find none.

The sentence of death is affirmed

HAYS, J., concurs.

CAMERON, Justice, specially concurring.

I agree that the death penalty s properly

imposed in this case. However, because |

disagree with the majornty in ita hoiding

that the crime was especially heinous and

depraved, | feel that | must specially coo-

cur.

I do so not because | am insensitive to the

Uragie consequences of defendant's criminal

conduct, but because | believe that if the

death penalty statute in Arona » lo pass

constitutional muster, it must be interpret-

ed in such a way that only those who clear-

ly come within the mandate of our leguile-

ture and the United States Supreme Court

are given this punishment. The death pen-

alty is reserved only for those crimes which

are above the norm of first degree murders,

or for defendants who are above the norm

of first degree murderera. State ». Zarago

m 135 Ara G8, 6, 666 P2d 2 727-2

(1983), State + SN tae See Oe

623 P2d 943, - 4 (1961)

The majority finds Uns crime to be espe

cially heinows and depraved under ARS

§ 13-704 FX 6), based on two of the criteria

set out in State v. Gretzler, 135 Anz 42, 659

P2d } (1983), the infliction of gratuitous

violence on the vicum, and the needless

mutilauon of the victim I do not believe

the facts of thus case fit within the proper

boundaries of these criteria.

The inflictuon of gratuitous violence was

found and the death penalty imposed in

State v. Ceja, 126 Ana 35, 612 P2d 491

(19880), in whuch the defendant continued to

shoot his victims after it was apparent they

had been fatally wounded, and then begas

kicking one of the victims in the face re

peatedly while the nctim was already un

conscious or dead. We said,

We think that defendant's conduct in

contnuing his barrage of violence, inflict-

ing wounds and abusing his victims, be

yond the point necessary to fulfill hs

plaa Ww steal, beyond even the point nec

essary to kill, w such an additional cir-

cumstance of a* * * depraved nature so

as to set it apart from the ‘usual or the

norm’ 126 Ara at 40, 612 P2d at 496,

quoting State v. Ceya, 115 Ana 413, 417,

565 P2d 1274, 1278 (1977). See also State

v. Gretaler, supra, 135 Ariz at 52, 660

P.2d at IL

We sumilarly heid that gratuitous vielones

was inflicted in State v. Jeffers, 135 Ara

404, 661 P2d 1106 (1963), where after the

kulling the defendant climbed on top of the

68 Ar

corpse and beat is face repeatedly with hu

fists, resulung ir fecal wounds am! bieed-

ing In State v. Woretseck, 14 Ara 62

657 P.2d 865 (1982). we also held Unal grete-

itous ynolence was employed where Ube de-

fendant strangled. stabtexd and bludgeoned

the vicum to death, and the force weed by

each of these three methods was suflment

to kill The death penally was properly

imposed in both Jeffers and Worstseck

In the instant case the victim was killed

by being run over by an aulomotale The

evidence adduced at Una! indicates Une sulo-

mobile was hkely backed over Ue wiclum,

and then dnven forward over Uke wicelm

defendant knew or should have known thal

the vicum was dead after Une first par. of

the car Cf Sus » Gerlaugh, 14 Anz

l&, 64 P24 BOO () 982) (vectlom aul) alive

after defendant ran over him with bus aulo

mobile several umes) Therefore, unlike

the defendants in Ceys. Jeffers, and Worat

zeck, supra, there has been no showing Uhat

this defendant inflicted any veolence on Ux

victim which he must have known was “be

yond the point necessary to kill”

The criterion of mutilation of the victim

was demonstrated by State » Vickers, L&

Anz 506, 633 P2d 315 (1981), where Une

defendant strangled Wo death hu prison orli-

mate and then carved the word “Bonza:”

into the victim's back Similarly wm State »

Smith, 131 Anz 2, G8 P2d G6 (191),

after suffocating the female wielums Ube

defendant proceeded to mulilale thew sex

organs and breasts with sharp objecta The

death penalty was imposed im Uhese two

cases based in part on Une finding Unal the

crime was committed in a beinous ard de-

praved manner The facts of these cases

are in marked contrast to the present case

Here there is no suggestion of distinct acta,

apart from the killing, specifically per-

formed to mutilate the wictum's body Any

disfigurement of the victim im thus cane was

the direct result of the killing itself. | do

not beleve we should stretch Une definition

of “mutilauon” to cover all murders in

which the victim's body » dusfigvred, where

there is no indication of « separale purpose

to mutilate the corpse

6 PACIFIC REPORTER, 24 SERIES

it = trve, of course, thal the appearance

of Ube viel mm Unue case was “ghastly” a

the majority sates But os the United

States Supreme Court has recenUy sad in

Gedirey » George, 46 UB 420, 100 SC.

1759, 64 L.Ed 2d S98 (1960) (revereing on

application of Georgu's statutory aggrevel

ing circumstance of “outrageously or wan

tonly vile, hormble or mhuman”™).

[Ih w constitutionally wrelevant thet the

petitioner used a shotgun instead of «

nfic as Une murder weapon, resullung 1 6

gruesome: syectacie un hw mother-in-law's

traier An wmlerpretauion of [Ube aggre

valing curcumstance) so as to include all

murders resullng m grvesome scenes

would be totally wrational. Id at 633,08

16, 100 SCA at 1767, a 16, 64 L.Ed 20 at

409, n 16 (plurality opinion) §=See also

at 435, 100 SCt mt 1768, & LEa2d

410-11 (Morshall, Brenaan, JJ, concur.

fact Unal Uc murder weapon @as one

which coused extensive damage to Ube

wieum's body @ constituUonally wreie

vant”)

Our statutory aggravating oreumstance of

a heinous or depraved killing focuses on the

state of mind of the killer, ave Sis‘e ¥

Graham, 135 Aria 209, at 212, 660 P2d 460

at 463, State v. Jeffers, supra, 135 Anz at

, 6) P2d at 1190-3); State »

Zaragoza, supra, 135 Ara at —, 659 P2d

at 2-2. State » Gretsler, supra, 185 Ara

at ——, 659 P2i at 10, State ». Wortamct,

supra, 184 Ariz. ot 457, 57 P2d at 870, not

en Une appearance of Lhe corpee. Although

Une resulling scene was gruesome, | believe

Ube proper application of the critens de

cussed above fails to support a findicg thal

the killer acted io « state of mind which

was especially heinous or depraved. The

crime is therefore got above the norm of

fwet degree murders.

The criminal record of this defend=xi,

however clearly places um above t=< norm

of fst degree murderers He Sas ives

eonvicted of another first degree murder

and a kodnapping, each ariwing in separate

incidents. This history of serious vrsent

STATE +. RICHMOND

Gen er ue Ae Rani

enme justufen the impomtce of the death

penalty

Il concur in the opinion of the majority

except iu finding that this crime was her

nous and depraved, and | concur @ Une

result

GORDON, Vice Chuef Jusuce, oncurnag

| coocur is Jusuce Cameron's specual coer

currence.

FELDMAN, Justuce, dssenung

| cannot agree with that peruse of the

majomty decumoe which hokis thet Ue

death penalty may sow be property imposed

cpoe Une defendant

| agree with Justice Cameron that the

murder was not heinous and depraved The

remaining aggravaung cucummtances »

chip came were that defendast had bees

convected of an offense for which ife >

pmaconment of death was imposabie, ARS

§ 13-7ORF 1), and that defendant had

been convicted of a felony involving the use

or threat of violence, id (FZ) Bok of

these Crcumetances pertain Uo the character

of the defendant defining the type of mar

serer and serving te set the defendant

apart aad above the “sorm” of killers As

we stated im Stale ¥ Watsoe | Watsoe [/),

129 Ara 60, GB 628 P2d 943, 946 (18>

(Tyke death penalty should be reserved

for only the mast aggravating of carcum

stances, Circumstances that are so shock-

ing of repugnast that the murder stands

penalty im this case @ clearly based «poe

tne character of Une defendant

Ia Watson Il, supra, we beid that rehabe-

The majority opnion indicates that the

evidence of defendant's improved conduct

and character was “very umilar” to ‘hat

presented in Watse [I, yet conchsdes that

precemes’

At the final sentence hearing, twelve in

diveduals offered evidence of defendant's

changed character and efforts to rehabilr

tate tumecif since hus imprisonment 8 we

These witnesses nciuded several members

biy since he had arrived at prison =x years

previously The witnesses beleved Unat de

fendam's aiutude had improved maternally,

that he had found purpase ia life and now

had a genuine desire to better himeelf and,

more umportamt, to help others There

ecomed wo be no quesuce but that the

demre to help cthers was more than subje>

tive, ot was actually carmed into effect

70 Are 66 PACIFIC REPORTER 24 SERIES

counselors employed al Une prison vesuled

that defendant provided encouragement,

advice and spiritual aasuslance both te he

family and Wo other praoners

Defendant's family noted the difference

in his attitude Defendant had become set

led and matured He was honestly Uying

to give some meaning & hus bfe Prom

prison, both in the form of letters and vusils

from hu family, defendant assusled them

with Unew problems, gave them advice and

encouraged them He was truly concerned

for hw family’s welfare The same was

true for his relauonship with other prison:

The counsclurs employed by the pron

giso testified that defendant's sttempts wo

better and rehabilitate himself were genu-

ine Of courme, the w 6 mater of opmon

t it was uncontradicted and, in ght of

the expenence of Une pron counselors, |

would place greal weigh! of new ayes

ment

Finally, the defendant himself vestufsed

that of given hfe umpreonment he ender-

stood that he would never live outssde pr

on, because the hfe sentence would and

should be imposed consecutively to Ube otb-

er sentences which he was aiready serving

Nevertheless, be felt that he had changed

and had something worthwhile lo offer oth-

ers in prison socety and his family Uf be

were allowed w live Given the current

problems of our phwon system, @ certain-

ly necessary thal we provide inmates wilh

and contioved effort to change hus charac

ter. rehabelstale bumeelf and continbule 2

bu own way to socety As tbe majonty

indocates, Une tral court could not make &

“defimtuve finding” on Une quesuuce of reha-

betauon While Une majority speculates

Uhat the trial court was “sot coovinced™

tha! defendant's charecter had changed, the

fact = thal the tral court made fo such

findung The majority states that the fac

“casi sufficent Goutt upon appellant's ve

racity so the tnal court could reasonably

decline to find the proffered evidence to be

a miugating factor” Agaim, Une tnal court

made no such statement In any event, Une

rehabilitalon mue Goes not turn pmmaruy

upon defendant's leslumony at all There

were twelve other witnesses, unumpeached

and unrebutled on the issue, and Une proof

of change, rehabilitation and con tnbulion

Wo sucety stands uncontested in tha case

Nor thus change some desperate, last-mun-

ule atlempt by defendant avo’ the

death penalty. The testumon) indicated

thal Une change in defendant's stutude and

character manifested itself long before 198)

when Watson J] fret established Unat such

a change was relevant ir deciding whether

to impose death

before being punwbed

obligaluoa, however, lo recognize Ue |.

bility aad pmoaple of redempuce and rebar

bill avon.

Further, independent review on the death

penalty weve involves more (han & determ:-

nations of whether the tral court's impos

tion of this penalty can be supported by the

record. It requires our own, independent

conclusion from the record Watson IL 12

Ara st 68, 628 P2d at 96 While the

aggravauing arcumstasces which were

found to exist may indicate that the de

fendant was above the norm of murderers,

the evidence of changed character & per

suasive mitigation Review of ths record

indicates strong evidence of rehabilitauos

and the probaiality that uf allowed to live,

defendant will make s contnbutuos of some

value to socety. Then what is to be gained

by impomng death under these creumstanc

ea’ Except in the phywcal sense, the de

fendant whom we today consign lo the gas

chamber is not the same person who com

mitted the crime in 1973 and was first

sentenced to death in 1974 While the pas

sage of ume should not be the Lest, we must

acknowledge that in the len years which it

has taken to reach this point, the def* jant

has been given time to change. Perhaps

those ten years should not have been al-

lowed to pass, but we must remember that

the statutes under which the defendant was

previously sentenced lo death were declared

unconstitutional, State v. Watsoa (Watson

[), 120 Ana 441, 586 P 2d 1258 (1978), and,

as a result, defendant has been given ume

which he hae put to good use While quick

punishment may deter, punmament of this

defendant at this time serves only to illus

trate that redemption and rehabilitatioe

have no practical purpose.

Speedy imposition of the ultumate penalty

might also have served the sonetal interest

in retribution See Gregg v. Georgia, 428

US 153, 188, 96 SCt 20, BBB,

LEd2d 859 (1976) But, agaia, the umposi-

upoa a different

protected by imposition of the death penal

ty since reduction to life impnsoninest

would ensure that this defendant would not

becornme eligrble for parole during his fe

time. By putting Ums defendant to death

in the face of his efforts to change and the

reasonable prospect that if allowed to live

he will be of value to society, we accomplish

nothing but revenge. Te some, especially

those in the heat of anger, thas may seem &

sufficient reason to nil The law should

not be swayed by such emotions, it does

not and cannot kill is anger; it rejects the

concept of an eye for an eye and a tooth for

a woth

tence to life imprsonment withost possibile

ty of parole for 25 years, to be served

consecutively to all other sentences Ao

cordingly, | diment from the portion of the

opinion which, on independent review, al.

firma the imposition of the death sentence

2° 8888 B BR

APPENDIX B

Copy of Warrant of Execution, State v. Richmond

(2)

, a: 6s

= STATE OF ARIZONA ama caren

201.wtsT wines

CAPITOL. BUILDING

(02) 298-4536

Phoexix 85007

July 5, 1983

James G. Ricketts, Director

Department of Corrections

321 West Indian School Road, Suite 1

Phoenix, Arizona 85013

Re: STATE vs. WILLIE LEE RICHMOND

Supreme Court No. 2914

Pima County No. A-24252

Dear Mr. Ricketts:

Enclosed is a certified copy of the Warrant of Execution in the above-

entitled matter. The execution is set for the 7th day of September, 1983.

Please sign the enclosed copy of this letter and return the same to

this office as our receipt.

Very truly yours,

S. ALAN , Clerk

By attun S

Deputy Clerk

Enclosure

ec:

Institutional Administrator, Arizona State Prison, P.O. Box 629,

Florence, Arizona 85232

Board of Pardons and Paroles, 321 West Indian School Road, Suite 1,

Phoenix, Arizona 85013

Hon. Robert K. Corbin, Attorney General, 1275 West Washington,

mix, Arizona 85007 Attn: William J. Schafer III and Jack Roberts

ederic J. Dardis, Pima County Public Defender, 45 West Pennington,

Third Floor, Tucson, Arizona 85701 a ISS

Stephen D. Neely, Pima County Attorney, Wes ; son,

Arizona 85701 :

Willie Lee Richmond, Box B 33415, Arizona State Prison, Florence,

Arizona 85232

SUPREME COURT OF ARIZONA

STATE OF ARIZONA,

Appellee,

vs.

WILLIE LEE RICHMOND, )

Appellant.

FILED

JUL 5 1983

gy CHIRK SubmEE CouRT

Supreme Court

No. 2914

Pima County

No. A-24252

WARRANT OF EXECUTION

The above-entitled cause was heard and fully considered by

this Court on the 10th day of June, 1982, and having finally decided

the cause, this Court did affirm the judgment of the Superior Court of

Pima County, State of Arizona, appealed from in this cause, and did

hand down its decision, which decision is now of record in this Court.

NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED, that

Wednesday, the 7th day of September, 1983, be and the same is hereby

fixed as the time when the judgment and sentence of death pronounced

upon the appellant, WILLIE LEE RICHMOND, by the Superior Court of Pima

County, State of Arizona, shall be executed by

LEE RICHMOND lethal gas.

administering to WILLIE

IT IS FURTHER ORDERED that the Clerk of this Court

forthwith prepare and certify under his hand and the seal of this

Court a full, true and correct copy of this Warrant, and cause the

game to be delivered to the Director of the Department of Corrections

and the Superintendent of the State Prison, at

the same shall be sufficient authority to thea

Florence, Arizona, and

for the execution of

the appellant, WILLIE LEE RICHMOND, as commanded by the judgment and

Supreme Court No. 2914

WARRANT OF EXECUTION

Page Two

sentence of death pronounced against WILLIE LEE RICHMOND, by the

Superior Court of Pima County, State of Arizona, on the 13th day of

March, 1980.

Upon the execution of WILLIE LEE RICHMOND, the

Superintendent shall, pursuant to A.R.S. Section 13-706, forthwith

make a return upon this Warrant to the Superior Court of Pima County,

State of Arizona, which return shall show the time, mode and sanner of

execution.

Dated in the City of Phoenix, Arizona, at the State

Capitol, this 5th day of July, 1983.

$3S8es8seekk Bs

peor

A.R.

APPENDIX C

§ 13-703 (Arizona's Death Penalty Statute)

(3)

cae eeepesense sss 3 @

- .

Ariz. Rev. Stat. § 13-763.

Sentence of death or life imprisonment without pos

sibility of parole unti] the defendant has served twenty-five

calendar years

A A person guilty of first degree murdez as defined

in § 13-1105, shall suffer death or imprisonment in the cus

tody of the department of corrections for life, without por

sibility of parole until the completion of the service of

twenty-five calendar years, 2s determined and in accorc-

ance with the procedures provided in subsections B throug

G of this secnon

B. When 2 defendant is found guilty of or pleads guilty

to first degree murder as defined in $ 13-1105, the judge

who presided at the trial or before whom the guilty plea

was entered shal) conduct a separate sentencing hearing t

the purpose of determining the sentence to be imposed. The

bearing shal) be conducted before the court alone.

eegeueess

E. Ils determining whether to impose a sentence of

death oz life impmsonment without possibility of parole

until the defendant hes served twenty-five calendar years,

igating circumstances included in subsections F of this sec-

tion and G of this section and shal) impose a sentence of

substantia! to call for leniency

F. ine circumstances to be considered sha!)

be the following:

2 The defendant has been convicted of another offense

in the United States for which under Arizona law a sentence

of life imprisonment or death was impesable

- Sg the defendant was previously convicted of a felony

in the United States involving the use or threat of violence

on another person.

3. In the commission of the offense the defendant

Ss esesesseeekes 2 8

knowingly created a grave risk of death to another person

or persons in addition to the victim of the offense.

4. The deiendant procured the commission of the of

fense by payment, or promise of payment, of anything of

pecuniary value.

5. The defendant cominitted the offense as consider-

ation for the receipt, or in expectation of the receipt, of

anything of pecuniary value.

6. The defendant committed the offense in an espe

cially heinous, cruel, or depraved manner.

7. The defendant committed the offense while in the

custody of the department of corrections, 2 law exforcemes:

agency or county or city jail

G. Mitigating circumstances shal) be any factors prof-

fered by the defendant or the state which are relevant in

determining whether to impose a sentence less than death

including anr aspec: of the defendant's character, propen-

sities or record and any of the circumstances of the offense,

1. The defendant's capacity to appreciate the wrong-

fulness of his conduct or to conform his conduct to the re

quirements of law was significantly impaired, but not so

impaired as to constitute a defense to prosecution.

2. The defendant was under unusual and substantia)

duress, although not such as to constitute a defense to

prosecution.

3. The defendant was legally accountable for the con-

duct of ancther under the provisions of § 13-303, but his

participation was relatively minor, although not so minor

as to constitute a defense to prosecution.

4 The defendant could not reasonably have foreseen

that his conduct in the course of the commission of the

offense for which the defendant was convicted would cause,

or would create a grave risk of causing, death to ancther

person.

5. The defendant's age.

Amended by Laws 1979, Ch 144, § 1, eff Mar 1, 1979.

——_ 2

) Law OFFICES

| PIMA COUNTY PUBLIC DEFENDER

| 45 WEST PENNINGTON STREET, THIRD FLOOR

TUCSON, ARIZONA 85701

TELEPHONE: (602) 731-3300

| LAWRENCE H. FLEISCHMAN

| ATTORNEY FOR DEFENDANT

LHF: pfa 9/20/83

IN THE

OCTOBER TER,

SUPREMZ COURT OF THE UNITED STATES

19383

G3- SAI

WILLIE LEE RICIDIOND,

vs.

Petitioner,

*esesseseserkseset 8B

THE STATE OF ARIZONA,

Respondent.

MOTION FOR LEAVE TO “ROCEED

IN FORMA PAUPERIS

The Petitioner, WILLIE LEC RICHMOND, asks leave to file the

accompanying Petition for Writ of Certiorari without prepayments

of costs and to proceed in forma pauperis.

The Petitioner's Affidavit in Support of this motion is

attached hereto. Petitioner proceeded as an indigent represented

by the Pima County Public Defender throughout all state and

federal habeas corpus proceedings.

DATED this 2” day of September, 1983.

PIMA C PUBLIC DEFENDER

Attorney for Petitioner

”~

+ eee ae ae =o

ee ne EE a 6 ee

$3.49

AFTIDAVIT IN SUPPORT OF MOTION TO

PROCEED IN FORMA PAUPERIS

STATE OF ATIZONA )

) ss

COUNTY OF PIMA )

I, WILLIE LEE RICH“OND, being first duly sworn, denroses

I am the Petitioner in the instant Petition for

Certiorari, that am the Appellant in No. 2914, in the

Arizona Supreme Court, that said Court has affirmed mv jucr-

ment and conviction; that rt of my “Motion to Proceed

on the Petition for Certiorari being required co

repay fees, costs or give security therefor, I

because of my provertyvy I am unable to pay the costs of said

proceedin’s or to give therefor; that I believe I

am entitled to recress

I further that the responses whic’ I have made to

the questions and instructions below relatinr to my abilitv

to pav the costs of prosecuting the Petition for Certiorari

are true.

a Have you received within the past twelve months anv

income from a business, profession or other form of self-

SUPREME COURT. US

employment, or in the form of rent payment, interest, dividends,

or other source? ~7L@&

3 Dé you own cash or checking or savings accounts?

List. amount, number and location of checking/savings account.

4. Do you o'm anv real estate, stocks, bonds, notes,

automobiles, or other valuabie property epee ordinarv

household furnishings and clothing)?

| 7.

understand that a false statement

sudject

vestion in this Affidavit

c ee hoe ‘ - ~ ~-

~ - ~—~- -

_ an a

Sertem*er i9 2 ~ L

cry creeqtToarmy: wr rece

. ~ \& > .% . >

My Comeresseor Expires April 28. 197

.**

Wiss

‘obha

answer

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.