# Petition — RICHMOND v. ARIZONA (No. 83-5449) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1670%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 ## Text 27 26 31 I3-S447 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> NN 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 8 TABLE OF CONTENTS QUESTICNS PRESENTED CITATION OF OPINION BELOW STATEMENT OF JURISDICTION l 2 2 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 21 8 31 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) v0 1 State v. Blazak 131 Ariz. 598, 643 ! zd 694 (1982) v 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 14 20 13, 19, 20 6 6, 18 1s 6 11, 12 14 11, 12 8, 9, 10 . 5 31 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, uw PAGES 9 7 17, 18 ae Pe 6 11 ~+ 15, 16 5 31 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 oe 1 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). 20 ~ 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). 31 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 1 . other four and dissented from affirmance of the death penalty, 17 declaring that the uncontradicted, corroborated evidence at 12 resentencing showed that Petitioner had used his years on eo I death row in an exemplary fashion, and that executing 14 Petitioner at this point would serve no valid societal 1§ purpose: 16 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). 24 ie Petitioner raised the issues set forth in this 25 petition at the state trial court level at the time of 26 resentencing, then asserted these issues in his appeal to the 27 Arizona Supreme Court. 26 8. Petitioner's request on this petition is for an 23 order reducing his death sentence in life in prison, to be Ko) served consecutively to the life sentence currently imposed 31 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 21 8 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 A —_—_—_ 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 Me 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) | 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- : 31 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 De affirms the vrial court's failure to make a definitive ee ane finding on this issue, how wan it be said that the death a —_—_——_ 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 wo ws 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- te 31 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 31 APPENDIX A (1) 666 P. 2d 57 (1983) STATE +. RICHMOND na ne OO Pe 7 Arm Ey : 4 ji ?} i ii ett call sith if ‘sel rH iN i |! it Hi its i it : } i i 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 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 There is no evidence t© suggest Usal Une 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. nang) (We) also agree that © * * the 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= 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: er 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 w peor A.R. s. APPENDIX C § 13-703 (Arizona's Death Penalty Statute) (3) « wn 13 + Ls cae eeepesense sss 3 @ I ** - . 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 ee 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 31 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 - ”~ on tw | + eee ae ae =o ee ne EE a 6 ee ene ee see aoe em eee ae oe ee a Oe. ee eee © \ $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 tn 3 w c vv v ° 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. # Are you presently employed? “© 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)? ww ur | 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 me answer to --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1670%3A1. Public record. Not legal advice.