Opposition Brief — Bracy v. Arizona

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A T E AR NA Rew

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Attorney General] f

the State f Arizona

WILLIAM J. SCHAFER

hief Counsel

riminal Divisior

—

R. GRANT

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ix, Arizona

Attorney

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as Tne Arizona ipreme urt aff rmec ™ 2 :

nvicti and entences, and tt irt denie > pet

;Or writ f erti 390 Aris 4 r

P.2G 92U .96 P 4 § t 2670,

« Oi &-e EOC. LG 3/5 P| rt reversed

, , - > tare ’ , , a | t ,

cruz Vi ior . ; v ruz, i Ariz Si, O/2 8 é 4

1983 He is presently awaiting retrial.

The trial of petitioner and Hooper began in late

October of 1982. The state presented testimony from

Marilyn Redmond, who identified petitioner, Hooper and

McCall as the three men who had entered her home and

killed her husband and her mother. Another state

witness, Arnold Merrill, described his involvement in the

killing of Mr. Redmond. According to Merrill, in

September of 1980 Cruz had offered him $10,000 to kill

Mr. Redmond, but Merrill refused the offer. In early

December of 1960, Merrill accompanied Cruz to the Phoenix

airport where they met petitioner and Hooper, who had

Just arrived on a flight from Chicago. The two men

Stayed in Phoenix for a week, during which time Merril]

drove them around town and introduced them to McCall.

Merrill was present when Hooper made an unsuccessfu]

attempt to kill Mr. Redmond. Petitioner and Hooper

returned to Chicago a few days later. However, on

December 30, 1980, the two men returned to Phoenix. The

next night, after the killings at the Redmond hone,

petitioner, Hooper and McCall came to Merrill's house and

told him of the killings. The state also presented

testimony from Dean Bauer, who had purchased at Cruz'

request airplane tickets to and from Chicago for

petitioner and Hooper. George Campagnoni testified that

he had driven petitioner and Hooper to the Phoenix

@irport for return flights to Chicago on December 10 and

31, 1980. Another state witness, Nina Marie Louie,

testified that she had met petitioner and Hooper during

their first trip to Phoenix in early December, that

petitioner had bragged he would return to Phoenix to do a

*big job,* and that petitioner, Hooper and McCall had

left her home on the evening of December 31, 1980, to do

their °job.*°

per guilty n all unts Pursuant ¢t

Ariz.Re Sta Ann § 13-703, the trial court hel ar

1 acqravati itiga n hearing on Februar 4, 1983 r

) Februar ll, i$ , the trial court imposed sentence T

6 trial court found five aggravating circumstances (that

7 petitioner had prior convictions punishable by deat? r

= life imprisonment, that petitioner had prior nviction

9 involving the use f violence, that petitioner reated a

jt} 3ra risk f jeath + Mrs. Redmond, that petitioner

1] mmitted the murder for pecuniary gain, ar that

l2 | petitioner mmitted the murders in an especially

heir , cruel and depraved manner) and no mitigatir

14 ircumstances sufficiently substantial to call for

l ienier Consequentiy the triai Jrt imposed the deat

lf penalt for the murder f Mr Redmor and Mr Phelr

17 The trial oe als imposed a life sentence for the

Is pirac nviction and prison terms of 35 years for

1y ea f the remaining unt The trial court ordered

2 the kidnapping sentences to run concurrently with eac

el ther but consecutively to the attempted murder sentence,

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24 that the burglary sentence run consecutively tc

~) robbery sentences, and that the conspiracy sentence run

consecutively to the burglary sentence. Hooper received

28 By notice filed February 16, 1983, petitioner

» ) ™

4 appealed from the judgments of guilt and sentences

imposed. On April 8, 1983, petitioner and Hooper filed a

a4 motion to vacate judgment. The motion alleged that the

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prosecution had failed to disclose information concerning

benefits given to Arnold Merrill. The Arizona Supreme

Court stayed the appeal pending disposition of this

motion. The trial court heard evidence concerning these

allegations in July and September of 1983. On

October 20, 1983, the trial court made the following

findings: (1) that Dan Ryan, an investigator for the

county attorney's office, had advanced the sum of $414.00

to Kathy Merrill (Arnold Merrill's wife) for her car

payments, that he was only partially reimbursed, and that

this assistance was a benefit to the Merrills; (2) that

Mrs. Merrill received approximately $3,009.00 from the

Maricopa County Attorney's Protected Witness Program; and

(3) that Arnold Merrill had made long distance telephone

calls from the county attorney's office, some with the

knowledge and consent of Dan Ryan. The trial court

concluded that these matters should have been disclosed

to the defense but were not. However, the trial court

Genied relief because the matters were cumulative and

would not have changed the verdicts. By notice filed

Novemper 7, 1963, petitioner and Hooper appealed from

that order, and that appeal was consolidated with the

earlier appeal.

On June 10, 1985, the Arizona Supreme Court affirmed

the convictions and sentences of petitioner and Hooper.

State v. Hooper, Ariz. , 703 P.2d 482 (1985);

State v. Bracy, Ariz. » 703 P.2d 464 (1985). On

August 20, 1985, the Arizona Supreme Court denied

petitioner's motion for reconsideration. The instant

petition for writ of certiorari followed. °

5 d

’ AR Met

¢ A 4 Er ul N T RY THE PR 5 TI N

ID NOT RIV PETITIONER F A PAIR

RIA R [ PR ESS F LAW

o Petitioner ntend that mis nduct +t the or ‘ r

; prived hi ’ @ fair trial ar jue pr © f law The

titut,i ; rar eec a fa ° trial he jab the Jue

t € Lause , anc thi rt =] gefinec a fair tr

, trial »w ré , reliabls See . klar

Washington, __ —— 4 t 2052, & ff 2a 674

1984 Respondent bmit ar mis nduct ¢t he

pr € i tha ase did not prive petitioner fa

] rai triéil

. Pk hi pretrial request for trar ripts f relate

; pr eed) , @ + mputer resear termir , and

6 . ‘ . the Redmor _— What petit — P ant

9 enti at the trial srt granted eact f thess

Z2 regu t Since petitioner got exactly what he wanted, r

2 *"misconduct® t the prosecution with respect to these

24 requests had r effect on the reliability £ the verdicts

5 in thi ase

Ai Petitioner next points t the f secutor’s openir

27 statement > t+he Jur Ir that statement the pr secut °

2s Saic st Nina Marie sie hac made f itive pretria

24 identifications f bot petitioner and Hooper At the + ‘

2 f the openina statement, the trial] - urt had n > ver ruled

3] n a defense motion to suppress Ms Louie

» ident fications The trial] rt later r eA thar the

pretrial identification procedure had been unduly

Suggestive, anc thet Ms. Louie would not be allowed tc

testify about those identifications. Ms. Louie did make

im-court identifications of both retitioner and Hooper. At

the end of her testimony, the trial court instructed the

Jury to disregard the prosecutor's reference to pretrial

iGentifications by Ms. Louie. Thus, due to the tria]

court’s ruling and admonition, no prejudice resulted fror

the prosecutor's statement.

Petitioner alleges the prosecutor -cted improperly in

Submitting to a: interview that appeared in a loca)

magezine. Voir dire examination of the jury pane]

established that no veniremen had seen the article. The

trial court then instructed the panel not to read it. Once

again, the prosecirtor’s conduct had no effect on the

reliability of the verdicts in this case.

Petitioner also alleges that a key government witness

acknowledged at trial that, while he was in custody, an

investigator for the prosecution “arranged for his removal]

from jail so that he could have sex with his wife.*

(Petition, at 6.) Petitioner has misstated the witness’

testimony. What the witness, Mr. Merrill, said was that

the investigator had allowed him to visit his wife and that

Merriil had used this opportunity to have sexual relations

with her. Petitioner presented evidence of this misconduct

to the jury anc he was free to argue whatever inferences

from that evidence he chose. No prejudice resulted to

petitioner.

Petitioner complains that the prosecutor in closing

argument urged the jury to draw an adverse inference from

the fact *t @ witness had not appeared at the trial.

When defense counsel objected to the prosecutor's argument,

-6-

fact that the prusvcution had provided petitioner with the

Substance of the notes prior to trial. Second, the notes

aiffered from the final report in one aspect: according to

the notes, Mrs. Redmond had told the officer that three

men, two of them black and one of them white, had attacked

| her and her family; according to the final report,

| Mrs. Redmond sa 4d that all three of the assailants were

black men. While this distinction may have been critical

to a claim by McCall (wno is white) that Mre. Redmond had

Misidentified him, it is certainly less than critical to

petitioner, who is black. Third, there was no change of

Gefense strategy in this case. Mrs. Redmond would have

identified petitioner as one of the murderers of her

husband and her mother no matter what the officer's notes

Said. Thus, petitioner's strategy had tu be an attack on

the accuracy of her identification. Therefore, the

prosecution's conduct regarding the "horribly

incriminating” statements and the handwritten notes had no

impact on the fairness of petitioner's trial.

Petitioner also complains about untimely disclosure of

, police reports concerning the arrests of three other men as

Suspects in these killings, photographs of those three men,

and the payment of benefits totaling $878 to Nina Marie

Louie. Petitioner again omits important facts regarding

these items. Petitioner presented evidence to the jury

detailing the benefits to Ms. Lovie. He could have done

| nothing more if the evidence regarding the payments had

| been more timely disclosed to petitioner. As for the

photographs of the three suspects, the trial court

Sustained defense objections to their admission and

| instructed the jury to disregard any mention of then.

Finally, petitioner received copies of the police reports

PETITIONER HAS FAILED TO STATE A

CONSTITUTIONAL CLAIM WITH RESPECT TO THE

ADMISSION OF EYEWITNESS IDENTIFICATION

TESTIMONY AT HIS TRIAL.

Petitioner argues that the admission of identification

testimony at his trial deprived him of due process of law.

Specifically, petitioner claims that the pretrial

identification procedure in which Mrs. Redmond identified

him was unduly suggestive and created an intolerable risk

that her in-court identification of him was unreliable.

Respondent submits that petitioner has failed to state a

constitutional claim.

Petitioner is not arguing that the Arizona Supreme

Court misapplied the standard se: by this Court's decision

in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53

L.Ed.2d 140 (1977), and Neil v. Biggers, 409 U.S, 1868, 93

S.Ct. 375, 34 L.Ed.2¢ 401 (1972). Nor is petitioner

cia@iming that there was no evidence to support the Arizona

Supreme Court's conclusion that Mrs. Redmond's

identification of petitioner was reliable. The Arizona

f Supreme Court clearly set forth the evidence it relied on

in reaching that conclusion. See State v. Bracy, supra,

703 P.2d at 475-76. Petitioner is simply claiming that

there is conflicting evidence from which conflicting

inferences and conclusions may be drawn. In short

petitioner is asking this Court to subetitute its

assessment of the evidence for that of the Arizona Suprene

Court. Such a request does not raise a constitutional

| Claim.

-10-

RIMINA er

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ase ‘ pr ‘ the . ‘ - 4 . ‘ "

7 € ar 7uU€e ‘ r ac t tne =] € 4 tne

jefense nac mace against nivf Pr r ft r examinat r

petitioner and + per asked the t. . ee. * 4 w ther

. 3uest Rya at " the fact that ris " ntemr

narges were pending against hir e trie rt denied

the reques noting that the harae were nct relevant and

that any probat e value wa t we shed } the pre :

Pim

> *-* ,* ; -* , , «

4 e 1ai J in tne ia ‘ xe

3 defendant f petitioner and Hooper had ted Ryan f

tem ; based : ‘ — the . ‘

SRkRESeRR

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=—_

effect. Petitioner ard Hooper then cross-examined Ryan

about the misconduct allegations; the pending contempt

charge was not mentioned.

If the right to effective cross-examination is denied,

constitutional error exists without the need to show actual

prejudice. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1195,

39 L.Ed. 24 347 (1974). However, the extent of

Cross-examination is a matter within the sound discretion

of the trial court. Alford v. United States, 262 U.S. 687,

51 S.Ct. 218, 75 L.Bd.2d 624 (1931). The record in the

instant case establishes that a special, independent

prosecutor who was not a member of the office prosecuting

petitioner had responsibility for prosecuting Ryan on the

contempt charge. The record also establishes that the jury

was well aware of the serious nature of the misconduct

allegations and of the possibility of criminal liability if

the allegations proved true. Thus, Ryan's bias, motive and

self-interest were apparent to the jury. The trial court's

refusal to allow mention of one additional fact (that a

contempt charge was actually pending against Ryan) was not

unreasonable and did not result in a violation of

petitioner's constitutional rights.

PETITIONER HAS FAILED TO STATE A

CONSTITUTIONAL CLAIM WITH RESPECT TO THE

ADMISSION OF PHOTOGRAPHS OF THE VICTIMS.

Petitioner argues that the admission of *gruesome*

photographs of the victims deprived him of his

constitutional right to a fair trial. The admission of

evidence of this sort is essentially a matter of trial

court discretion, not of federal constitutional rights.

The photographs gave the jury a complete view of the murder

scene and supported the prosecution's theory that these

-12-

counsel. Such evidence could have come from witnesses

other than petitioner or Hooper: Merrill, for instance.

Petitioner's claim that the remarks sought to stress his

Silence as evidence of guilt is baseless. Petitioner is

not entitled to relief.

PETITIONER HAS NO FEDERAL CONSTITUTIONAL

RIGHT TO HAVE A JURY INVOLVED IN THE

CAPITAL SENTENCING DECISION.

Petitioner argues that Arizona's death penalty statute

violates his rights under the Sixth and Fourteenth

Amendments to have a jury pass on the factual questions

that might lead to the imposition of the death penalty.

This Court has held that there is no constitutional right

to jury sentencing in a capital] case. Spaziano v.

Florida, U.S. » 106 S.Ct. 3154, 3162-63, 82 L.Ed.24

340, 351-53 (1964). Petitioner is not entitled to relief

from this Court.

VII

ARIZONA'S DEATH PENALTY STATUTE PROVIDES

SUFFICIENT GUIDANCE TO THE TRIAL COURT.

Petitioner attacks Arizona's death penalty stetute

because it does not define what a mitigating circumstance

is and because it offers the trial court no juidance on how

to weigh mitigating factors against aggravating factors.

Thus, petitioner concludes, Arizona's statute results in

arbitrary and capricious imposition of the death penalty in

violation of the Eighth and Pourteenth Amendments.

Petitioner's position is meritless. Arizona's “open

endec* approach to the consideration of any relevant

mitigating evidence was mandated by this Court's decisions

in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 669, 7]

L.Ed.2¢ 1 (1962), and Lockett v. Ohio, 438 U.S. 586, 98

-]4@-

STATE OF ARIZONA )

)

COUNTY OF MARICOPA )

GERALD R. GRANT, being first duly sworn upon oath,

deposes and says:

That he served petitioner in the foregoing case by

forwarding one (1) copy of RESPONSE TO PETITION FOR WRIT

OF CERTIORARI, in a sealed envelope, first class postage

prepaid, and deposited same in the United States mail,

addressed to:

WILLIAM BRACY

Box 99

Pontiac, Illinois 61764

this 2nd day of December, 1965.

JualdR frat

GERALD R. GRANT

SUBSCRIBED AND SWORN to before me this 2nd day of

Tay. =

December, 19865.

SUSAN C. LEWIS

NOTARY PUBLIC

My Commission Expires:

October 17, 1988

CR43-050/77986D/scl

-~16-

IN TUF SITPE PME COURT OF TRE STATE OF ARIZONA

7 enc

FILED

OCT -9 385

STATE OF ARIZONA, )

) gy TERE SUPREME COURT

Appellee, )

7 ) “Yo. 5806-2

PAUL CLYDE LESLIE, )

Apcellant. )

Appeal from che Superior Court of Maricopa County

Cause No. CR-118792

Tne Honorable Ed ¥. Sughes, Judge

REVERSED AND REMANDED

Robert &. Corbin, The Attorney Gereral Phoenix

Sy William J. Schafer III and Georgia Ellexson,

Assistant Attorneys General

Attorneys for Apoellee

Ross P. Lee. Maricopa Coumty Public Defender Phoenix

By Dennis Dairman and James Edgar,

Deputy Public Defenders

Attornevs for Appellant

CAMERON, Justice

Defendant, Paul Clyde Leslie, was comvicted and adjudged

guilty of first degree aurder, A.R.S. § 13-1105. He was

sentenced to death pursuant to A.R.S. § 13-703. We have

jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) amd A.R.S.

§§ 13-4031 and -4035.

We must decide the following issues:

1. Did the ertal court properly find chat the

police had probable cause to arrest

defendant’

Was defendant denied his right to a speedy

trial pursuant to the sixth amendment of

the United States Constitution?

Did the trial court err in charging the

Surry by:

a. failing to give a requested Wil*its

iastruction; _

bd. failing to give defendant's requested

instruction that burglary is a

lesser-included offense of felony surder;

¢. failing to iaform che jury that ao

unfavorable inference could be drawn from

the failure of a witness to testify’

4. Was the death penalty properly imposed”?

The facts follow. On 2 April 1981, the victim, Mrs. Mary V.

Rabb, age 70, lived alone in Phoenix, arizona. One of her

neighbors had seen and talked with her chat sorning at around

7:00 A.M. when che two of them went for a brief walk. Rabb

returned home at approximately 7:10. Sometime between 11:00 and

12:00 noon, the two women who lived sext door to her soticed that

ber dog was running loose outside. Because this was unusual,

they went to her house to see if everything was all right. Rabb

did not come to the door when they knocked and they soticed that

her car, « new white Oldsmobile, was gone. They returned to the

house at 5:00 P.M., this time entering the premises. Mrs. Rabb's

dead body was discovered in “he garage. She had been hit

e2-

approximately twenty cimes around her head resulting in her

death. Several rugs were covering the victiz'’s body and there

was a small, blood-stained ax found in the garage.

On che sorning of April 2, 1981, defendant weet to the

Bilcmore Gold and Sliver, located several siles from che victia's

home, and attempted to cawn several pieces of the victia's

silver. When che owner of the store asked for his car

registration, defendant left the store and drove away in « sew

white Oldsmobile, leaving behind che silver and his driver's

license. Shortly after soon, defendant picked up two women

nicchhixers ac i5ch avenue and BSuckeve Road. He was vearing

women s shoes. Ome of the women took from the console between

the two front seats a ring which was later determined to belong

to the victis.

Defendant and his two passengers drove west toward

California. When officers at Hope, Arizona, in what was ther

Yuma Coumty, Arizona, attempted to arrest him for speeding, he

exited the freeway, stopped at « gas station, got out of the car

and ran, leaving the two women behind. The officers impounded

the car and ascertained chat it belonged to the victim. Several

hours later, defendant was arrested.

At trial, defendant took che stand on his own behalf. He

admitted having stolen the silver from Mrs. Rabb'’s house but

denied killing her. Ge stated chac he sever saw her thet day.

Re also stated, without offering an explanation, that he had put

om ome of her shirts and a pair of her shoes. The police vere

unable to find che shirt and shoes that he discarded. Defendant

was found guilty by « fury on 9 February 1984. From his

conviction and sentence, he appeals. He also filed for review of

the denial of his petition for post-comvicticn relief pursuant to

Rule 32, Ariz. R. Crim. P., 17 A.R.S. We consolidated che two

matters for determination.

THE ARREST

Defendanc first argues that che trial court erred in failing

to grant the sotic- to suppress evidence obtained as a result of

his illegal errest.

Om 2 April 1981 act 2:45 P.M., D.P.S. Officer Brad Wackias saw

a white 1981 Oldamchile sedan containing at least two people

travelling om Interstate 10 sear Hope in the Salome-Vicksburg-

Wenden area of Yuma County, Arizous. Secause che car was

exceeding the speed limit, the officer attempted to pull ‘it over.

The car exited at Vicksburg Road and stopped at am Arco gas

station. When the officer caught up with che venicle, he saw two

womet who were attempting to rum. He stopped them and ther

informed him that the car hed been driven by a dark haired

Mexican or Oriental aale, standing approximately 5'8" and wearing

dark clothing. ‘The officer ram « license check on the car and

determined that ic was registered to che victim. The car had

act, at chat cine, been reported stolen. Sergeant Harold and

Deputy Pearson of the Tusa County Sheriff's Office also arrived

at che Arco station and Officer Watkins related to chem che

comuversation with the women. The women were Chen Cransported to

the Sheriff's substation.

At approximately 6:00 ?.M., che Yuma Coumty Sheriff's Office

-~& -

received « call that « Mexican looking sale wearing dark blue

clothing was trying to break into « crailer ac that same truck

stop Pearson and Harold arrived at the truck stop and saw

defendant standing there. He fic the descriotion «iven ther end

they called his ower to the car. As he was walking toward ther.

Sergeant Gosch of the Yuma County Sheriff's Office arrived ae

Laformed the officers that the Phoenix Police Departeent was

Lmvestigating « homicide at the ‘ome of the owner of the vehicle

thac Officer Watkins had stopped earlier

when defendant arrived at the car, Sergeant Barold asked his

for identification; he oroduced « Hawaii driver's license

Officer Pearson then got out of the car end talked to the voman

who hed telephoned che sclice ebout the burglary She identifi

defendant as the san she hed seen Sreaking into the trailer

Pearson also inspected the trailer end saw a broken wiadow is the

door of the trailer and shoe prints around the door area.

Wile Officer Pearson was saking his inspection, Sergeant

Harold talked with defendant Because Sergeant Sarcold ded prior

to the suppression hearing, no testisony was offered as to their

comversation. Sergeant Gosch testified. however, that defendant

removed some items from his pockets, including the car keys to

Rab> s Cldapobile. Defendant was subsequently placed under

arrest.

Defendant contends that “the fact that the (defendant) say

neve appeared tc be « Mexican and was wearing dark clothing io

front of « cafe in Salome * * * does sot cousticute probable

cause to arrest hia.” Cicing Florida +. Rover, 460 U.S. 491, 10?

°§<

$.ct. 1319, 7S L.¢.2¢ 229 (1983), defendant additionally argues

chat he was arrested when Sergeant Marold asked hia to empty his

pockets. He, therefore, saintains that che car ks = should have

been suppressed as che fruits of am illegal search. The fourth

apendsent, 0.5. Comet. amend. IY, requires « showing of probable

cause before « ¢efendant say be arrested. We heave defined

probable cause as reasonable grounds to bellewe chat an offense

is deing or bas deen committed by the person arrested. ‘State v.

Wiley, _s Ariz. ___, 698 P.2¢ 1244 oe 12580 (1985).

Addiciomally, « defendant is arrested when his liberty of

sovement is interrupted and restricted »y the police. State v.

Green, 111 Ariz. 404, 466, 532 P.2d $06, SO8 (1975S). Whether

such restriction has occurred is detersised Sy an ob‘ective

evaluation of che evidence and sot bw the sub‘ective belief of

the perties. id.

Because Sergeanc Sercld was unevallable to testify, we are

wmable co determine whether defendanc was free to leave when he

emptied his pockets. The state, however, has the burden of

showing thet the arrest wes proper. See State v. Edwards, 11!

ariz. 357, 360, $29 P.24 1174, 1177 (197S). Im che ebeence of

proof co the comtrery, we gust assume chat defendant was arrested

at che cime he relinquished che keys.

We do sot find this aseumption defeating, because we believe

that the police had probeble cause to arrest defendant at chat

cime. They hed previously received « report of an attempted

burglary end were given « descriptios of the suspect. Defendant

both satched this description and was ‘o the area of che crime

scene Te is noted chac the Salome-Vicksburg-Wenden area is an

area of sparse population, Salome che largest of che three

communities having an estisated population of 606. Local people

are readily recognized and strangers stand owt. It is highly

unl ly that chere was another siailarly dressed person fitting

defendant's description ia the viciaitcy We believe chere was

probeble cause to arrest defendant. We fiad so error.

SIXTH AMENDMEN RiGH~ 70 A SPEEDY TRIAL

Defendant sext argues that he was denied his right to «

speedy trial under the sixth amendment to the United States

Comsticution. in order to understand this argument, a brief

chronclogy is secessary. Cefendanct was arrested on 2 April 1981,

and iodicted six days later. He was subsequently cried, and the

Surv recurned a verdict of guilty to first degree surder on

l Seotember 1981. The crial ‘utge was thereafter forced to

disqualify himself from the sentencing because he had discussed

defencant's potential sentence with « sember of the victia's

family. <A sew cria. ~e« cccdered on 19 November 1941, pursuance to

State v. McDaniel, 127 Ariz. 13, 617 P.2d 1129 (1980). The state

filed a special action on 23 Nowember 1941, appealing the order

for « cew trial and we declined {wrisdiction. The state then

sought relief is the court of eppeals on 9 December 1941. On

ll Jume 1982, defendant filed « sotion to dismiss the appeal

leging the state's failure to prosecute diligently. This

gotion was denied on | July 1982, by the court of appeals. On

LS February 196), che state's appeal was Cransferred to this

Court and we ordered «a sew trial. Stete v. Leslie, 136 Ariz.

* =

463, 666 P.24 1072 (1983). after « hearing to determine whether

the state had violated Rule 8, Arizona Rules of Crisinal

Procedure, 17 A.R.S., defendant was retried on 31 January 1984.

Defendant sow argues chet che time between che grant of « sew

trial by the trial court on 19 November 1981, and che Supreme

Court order for new trial iseved on 5 July 1983, consticuces

"“tmexcusable delay’ and that, pursuant to the sixth amendment,

the charges against hia should be dismissed with prejudice. We

do not agree.’

The sixth amendmenc guarantees « defendant ‘the right to «

syeedy end public crial.” U.S. Comet. amend. YI. This right is

triggered by either formal indictment, information or ectual

restraint of arrest. State v. Soto, 117 ariz. 345, 348, 572 P.2¢

1183, 1186 (1978). ‘The United States Supreme Court has

enunciated « balancing test to be used in determining whether «

defendant has deen denied this constitutional protection. Four

factors aust be considered: (1) the length of the delay; (2) the

reasons for che delay: (3) the defendant's assertion of the

right, end (4) che prefudice caused to che defendant. Sarker v.

Wingo, 407 U.S. S14, $30, 92 $.Ce. 2182, 2192, 33 L.fd.2¢ 101

delay in bringing (che) secter to trial.” trial court dy

order S December 1963 found oo pre/udice.

> 8 -

(1972). Of these four factors, the length of the delay is the

least conclusive and che prefudice suffered by the defendant is

the sost taportanc. Setc, supre. in fact, the length of the

delay is essentially « criggeriog sechanism cecessi tating

analysis of the other factors. Stete v. Wright, 113 ariz. 313,

1S, $53 P.24 667, 669 (1976).

In the ‘netanc case, length of the delay, aporoxiaately

twenty sonths, is sot so long es to be preiudicial per se. Cf

Barker v. Winge, supra (s0 per se viclation when length of deley

was approximately five years), United States v. Deleon, "19 F.2

1218 ("eh Cir. 1983) (a0 speedy trial vicletion where 44-1 /2

south delay from time of arrest to commencement of tria)) te

is, however, sufficiently lomg to cause us to examine other

factors

We look first to the reasons for the delay The state had

filed « special ection in this court end then sought relief is

the court of appeals contesting the order requiring « sew trial.

Defendant argues chet this was unnecessary and that «efter we

denied jurisdiction the state should have proceeded directly to

triel rather then pursuing the setter in the court of sppeals

Defendant contends, theretore, thac “the delay was totally

anfustified.”

We heve held chet che prosecution's exercise of ics right to

appeal frow an edverse culling is comsidered « justifiable excuse

for delay. See State v. Million, 120 ariz. 10, 14, 583 F.1d 897,

901 (197%). ‘Thus, the state was withia ‘ts rights io filing «

special ection. Furthermore, we do sot believe chat pursuing ©

= 2

appeal ‘a the court of appeals after we denied jurisdiction was

taproper. First, « denial of jurisdiction in « special ection

does sot necessarily cometicute « ruling on the underlyiag

gerits. Rather, (tc aay indicate chat the appealing party ‘es an

adequate remedy through che ordisary appellate channels. Thus,

our initial denial should sot Se iaterpreted as iadicating that

the state's appeal was frivclous. Second, the prosecution had «

strong interest is the appeal. This was « viclent crime, which

the stace ‘ed already spent cise and effort prosecutiag. The

state Soped to evoid expending additional time and soney is

presenting evidence to « second ‘ury. Accordiagl?, we do sot

agree with defendanc that the delay cecasioned by che appes. was

anfustifieble. Of course, if it could be shows chet the appeal

by the state was for the purpose of delay or harassment, wuld

view che setter ¢ifferenct.,.

As to the third factor, we find thet defendant objected to

the delays io « sanner sufficient to demonstrate his interest ts

a prompe ediudication of his guilt. See Serker v. Vinge, suprs.

We look then to the last and sost teportaent factor --

prefudice co the defendant arising from che delays. De fendanc

alleges chat be was prejudiced is Cwo ways. First, be was

imearcerated during this cime end the strain of his confinement

hed « cegetive tapect on his physical appearance, and with ic his

eredibilicy. Secause his credibility was crucial co his defense,

he aaiotaios that be was barsed by this teprisomenc. The heres

alleged by defendant go essentially to bis abiiicy to conduct his

defense and are speculative is cature. We are unconvinced thet,

- 10 -

ig gemers|, « period of lacerceration tends to lapect upon one’s

credibility end fied ac evidence thet it did seo is this case.

Second, defendant contends that the Geley caused his to lose

a wey defense witcess. Throughout the trial. defendesc admitted

that he hed burglarized the victia's house but denied eilling

ner. He alleged chet another person entered the house lacer and

committed the surder. At the first trial, he hed called one of

che wictia's seighbors, Lisdse Severman. She testified chat her

life had been chrestened because of her iavolvement is « “land

dea. She also stated that on the sorniog of the ettack she saw

owe strange sen ceciag Sack and forth between her house and che

victia s house and that they Srightesed her. Sefendent nec

erguec that these sen had istended to «ill “rs. Severna: but had

@istaemecly ettacked the victia. At same polat between che firsc

anc second trial, the witness left Phoenix and defendest was

wal.e to fied her. At the second trisl, defesdest was forced ts

reac “rs. Seversan s testisony from the first trial to the ier.

Tether then hevieg the benefit of live cestiacny. He contends

that this prefuticed his case

We do sot fled thet defendant was harned. Even though we

believe chat “live” cestisony is becter thas “reed” cestiacey, we

fied that the prejudice in the iastast case was too speculetive

So support am allegation of « sixth ependeent viclatics. A

defendant ‘is entitled to « fair trial, sot « perfect one. Srutoe

v. Guiced Staces, 391 0.S. 123, 135, 88 S.ce. 1620, 1627. 20

L-Ed.24¢ 476 (1968). We fied so error.

JURY INSTRUCTIONS

Defendant raises several arguments concerning jury

instructions. He argues that the trial court should have given a

Willits instruction, an instruction on burglary as «

lesser-included offense and an instruction concerning the use of

previous testisony.

1. Loss of Evidence

At ertal, Police Officer Billy Butler cestified chac he had

examined Mrs. Rabb's car after it hed been impounded and that he

had noticed several spots on the emblem and the light in the

front of che car. Secause he believed chat these spots were too

small, he did sot notify the crime lab or ask any technicians tc

analyte che spots. He did, however, testify as follows on direct

examination:

Q. eee have you had occasion to see blood

before’

A. Yes.

Q. Very frequently’

A. Yes.

Q. De you feel chat you can recognize blood

Lf you see ict?

A. Yes.

Q. Now, these photographs sarked 13 and 14,

are they photographs of the car that you

ox amined’

A. May I see the license plate’ Yes, thac's

che same car.

Q. Sow, did you examine chac closely on the

outside for blood?

A. Yes, we did.

Q. What did you find?

A. I foumd on the emblem, which is in the

middle of the grille, what appeared co be

minute spots of what I considered to be

blood, also just above che emblem and also

by one of che lights, what appeared to be

a gsinute spot of blood.

*? Ff

De you have any opinion, based upon vour

experience, as to whether that was blood

or not?

A. Due to ay expertence as a police officer

and che numerous ciges --

* Ff

OBJECTION BY DEFENSE COUNSEL

THE COURT Overruled, proceed.

Q. (SY MR. LYNCH t's your opinion’

A. In ay opiaion chat was blood, yes.

7? Ff

Did vou try to s

have ic subsic

analysis’

Tape that blood off and

to the crise lab for

A. No siz, I did act.

Q. Why aoc?

A. Ie was too einute of an amount for the

crime lab.

The state also called as « witness Everect Allen Raphael, «

criminalist for the city of Phoenix. He stated, on

croes-examination, that there was « sufficient amount of

subscance on the car co allow hia to determine whether it was

lood, although he would be umable to determine the type grouping

ot amything further. In closing argument, the orosecution also

stated:

What about the blood on the car? Okay.

Detective Bucler should have had the car

checked out by che crime lab. There is no

question about that, and we can all sea chat,

I can see it. * * * The fact of che satter is,

ic looked like blood.

Detective Butler has seen blood before, you

have all seen blood, there is a pretty strong

inference that ic was blood, blood chat was

put on the car after Mary Rabb was killed.

The fact chat these spots sav have been blood was a vital part of

che state's case. Defendanc admitted that he hed burglarized che

victia's residence but claimed he never saw her. The body was

found in the garage sear where che automobile was parked. There

were no fingerprints on the murder weapon; seither was there

blood on defendant nor on the inside of the car. In eddition to

its allegation of blood om the car, the state relied on the fact

that defendant had admitted his presence in the house, that he

was in possession of a ring that the victia usually wore, that he

was weariag some of the victia's clothes, chat «a wacer hose in

the backyard was umcoiled and chat there was « damp towel found

in the victia's house. The blood would indicate that the car was

in the garage at che time of che gurder and contradict

defendant's testimony that he had ot seen the victim ac che tise

he burglarized the house and stole che car.

Based on this testimory, defendant requested « Willits

instruction. See State v. Willits, % Ariz. 184, 393 P.2d 274

1964). The crial court denied this request. Defendant contends

this was reversible error.

The question of lost or destroyed evidence has generated «

° 14

great deal of case law. When (cems are lost or destroyed «

defendant is unable to determine whether they would have been

helpful in his defense. Our court has used, as one sethod of

overcowlog this problem and ensuring a fair trial, the Willits

instruction. That instruction states:

If you find that the state *as destroved,

caused to be destroved, or allowed to be

destroyed any evidence whose contents or

quality are in issue, vou sey infer that

the true fact is against the interest of

the stace.

State v. Willits, ra.

In the instant case, we are concerned with evidence that was

allowed to be destroyed or lost. The state has « duty to act is

a timely samner to preserve evidence that is obviously saterial

and reasonably within its grasp. State v. Perez, 141 ariz. 459,

462, 689 P.2d 1214, 1218 (1984). A defendant is entitled to «

Willits instruction upon proof chat (.) the state failed to

preserve satertal evidence thac was accessible and sight have

tended to exonerate him and (2) there resulting prejudice. State

v. Reffiec Ariz. » 702 P.2d 681, 690 (1965). Warther, a

trial court's determination on whether or sot to give a Willits

tastruction is sot reversible error absent an abuse of

discretion. Id.

The state's questions during trial and comments during

closing argument testify strongly to the saterialicy of the lost

evidence. Addicionmally, the state's own expert testified chat he

could have determined whether che substance had indeed been

bleed. Therefore, the first requirement of che test is set.

e 1§ «

The iseue of prejudice is crucial in che present case. Where

the state pleces reliance on the evidence as blood, its duty of

preservation becomes increasingly importanc. Ic is fundamencally

unfair to allow the stace to latroduce conclusions as to the

contents of certain evidence against «a defendant without allowing

him to taspect it in «a ganmer that allows for seaningful

rebuttal. Scales v. City Court of City of Mesa, 122 ariz. 231,

234, 594 P.24 97, 100 (1979). We wight be able to overlook the

failure to preserve che evidence had the state oot emphasized the

fact it was blood. The state, in effect, created prejudice by

using the blood to contradict the defendanc's claims that he had

never seen the victim. Thus we iad pre‘udice ia "he state's

failure to remove the spots and have them preserved, coupled with

che state's affirmative comments concerning the fact chat the

spots were blood. We hold that the trial court's failure to give

the requested Willits ‘astruction was an abuse of discretion

amounting to reversible error.

2. Linda Bevernan's testiszony.

Defendant subaitted two alternetive instructions concerning

Linda Severzan's testiscny:

(1) A good faich effort has been sade by the

defendant to locate Linda Beverman; thus, s0

anfavorable inference can be drawn against the

defendant from her failure to eppear and

testify.

Seta ashe cee as SS" a ferstore

inference can be drawn from her failure to

appear and testify.

The crial judge refused to give these charges. Defendant sow

- 16-

maintains thac che fallure to give these requested instructioas

constituted reversible error. He gives two reasons for this

assertion. First, be argues that “(b)y refusing to tastruct the

Sury regarding how ic was to evaluate the BSeverman testiszony, the

court left open the possibility that the jury could disregerd ic

nerely because said witness was sot present at trial.” Second,

defendant contends that the trial court's refusal to explais that

ao unfavorable inference could be drawn from defendant's use of

previous cestisony conscictuted fundamental error because the

trial court failed to instruct “on 411 setters vital to the

consideration of the evidence.”

First, we find the clais chat che fury sight have disregarded

“rs. Baverman's testimony because she was oct present to be

without seric. The crial judge told che jury thet ic sust decide

the accuracy of each witness testimony and the [ury was aware

chac Mrs. BSaverman was considered to be a witness. Additionally,

beth the prosecution and defense counsel spent several sisutes

addressing her testigony in their closing arguments, thus

ensuring chac the jury would realize che t#portance of her

testisony and evaluate ic during deliberations. Admittedly, as

we heave soted above, reading testimony is sot the same as live

testisony but we do sot believe this demands « specific

iaetruction in every case. The secessity for an iostruction

regarding che absence of a witness will be left to the sound

discretion of the trial court.

We also retect defendant's second argument chac failure to

give the requested iastruction constituted fundamental error.

—

j -

Defendant contended that the fury aight falsely infer thac

defendant was trying to >ide semething by sot producing « live

wiemess and felt chat che ‘ury charge was essential to «lisinoate

this poesibility. We do not find chat failure to give this

requested tastruction was erroneous. “A juige seed sot give

imetructions on every subsidiary fact and sossible isference.

** * As long as a Sudge gives adequate and clear ‘tastructions on

che avplicable law * * * (che extent of the charge (‘1s « satter)

within *is discretion.” Commorwealth v. Phong Thu Ly, 471 N.£.2¢

383, 3184 (Mass. Apo. 1984). Jury instructions become too

cumbersome if the trial ‘udge is forced to instruct on sinute,

Somessential gatters. The trial court gust be able to limic whac

he will say to the ‘ury is order that the iastructions do sot |

became so loag and complex as to be confusiog and useless. Even

though, in the instant case, the offered iastruction say have

been « comment on the evidence where the defendant faces « surder

conviction and presents oaly one witness, the trial fudge

sacrifices little efficiency by giving « clarifying iastruction

which explains to che furors the s.acus of the testizony thet is

read to thes. The failure to read the defendant's tastructioc:,

less the comment on che evidence, though perhaps regrecable is

retrospect, falls short of funiamectal error. Our readiag of the

record reveals sco pre{uiice or abuse of discretion due te the

omicted teetruction. We fiad ao error.

3. Inetrsction ce she lesser-included offense

Defendant requested the fcllowiog ‘fury iastructics:

(Tike crime of wurder firsc degree commicted

oS Ge Gee GS & Gas 6 Ce Ges

of burelary second degree includes the less

serious charge of burglary second degree. The

State sey prove burglary second degree but

fail to prowe the sore serious crise of surder

first degree commicted in the course of and is

furtherance of the crise of burglary second

degree.

You ere permitted to find the defendant guilty

of che less serious crime of burglary second

degree ome, if the evidence does sow show

bevond 4 reasonab.e doubt chat the defendant

is cuilcy of eurder first degree in the course

of and in furtherance of the >urglary second

degree.

amd if the evidence does show bevond «

reasonable doubt the defencanct is guilty of

Surg ary seconc degree

The trial court denied this request Defendant sow contends that

because Surglary is « lesser-included offense of felony surder

and because there was sufficient evidence to warrant an

taetruction, the judge's denia. constituted prejwiicial error

We disagree for two reasons The tastruetion is incorrect is

thac it implies that to be guilty of felony surder defendant sust

be guilty of first degree surder is eddition to burglary Bis

does sot correctly state the law A person aay be guilty of

felony gurder even though che killing standing alone would be

second degree surder Tc is the face that the hamicide was

commicted during « felony (burglary) chet can raise what

otherwise would be « secood degree eurder to murder is the first

degree. Ic is the felony chet prowides che salice which sakes ‘ict

firet degree gurder. State v. Ferrari, 112 Ariz. 324, 541 ?.2¢

921. (975) The isestructics being incorrect, the judge did act

ert ia refusing to give ic. State v. asley, 132 ariz. 381, 395,

646 P.24 268, 278 (1982)

Seicher do we belleve, es defendant contends, that burglary

is « lesser iocluded offense of felony surder. Garrett v. United

States, 471 0.$. __, 105 $.Ce. 2607, SS L.fd.2d 764 (1985).

DEATH PENAL =Y

The special verdict of the trial court at sentencing stated

“There are co sitigating circumstances.” Oefendant argues that

the trial court Laproperly concluded that there were ac

mitigating factors. Se urges us to remand the case for

resentencing end issue guidelioes requiring trial futges to give

detailed statements of whether and why they beve found the

existence or somexistence of sitigatiog factors. We agree with

defendant chat che trial court erred end take this opportumity to

clarify the procedural requirements of A.R.S. § 13-703(D).

Ie conducting « hearing in aggravation and aitigation,

pursuant to A.R.S. § 13-703, che trial court ects first as the

fact finder. It gust consider whether the state has proven amy

of the aggravating factors eoumerated in § 7O3(F) beyoud «

reasonable doubt. ‘State v. Carriger, 14) Ariz. 142, 692 P.2¢

642. Tt qust also determine whether che defendant has shows

mwicigetiag circumstances by « preponderance of the evidence.

State v. McMurtrey, 143 Ariz. 71, 73, 691 P.2¢ 1099, 1101 (1984).

Micigatiog circumstances are defined as “any factors * * *

velevaent to determining whether to Lapose « sentence less than

death * * *." 4.8.5. § 13-703(G). after the crial court hes

made chese flodings of fact, it ther engages in « balancing Cest

le which (c determines whether the ai igeting factors are

sufficiently substantial to call for leniency. § 703(C).

- 20 -

In the case at ber, defendant iatroduced evidence that he was

@ sodel prisomer. He also argued chat chere was evidence that

another person hed been present who did the ectusl killing. See

Eamund v. Florida, 458 0.S. 782, 102 $.Ce. 3368, 73 L.d.24 1140

(1982) On appeal, defendant poiated to several other factors.

of which the trial court was aware: defendant's lack of «

criainal record for viclence, defendant's service in the Usited

States Marine Corps and che fect that defendant was 24 «at the

time of the crise The presentence report also contained

relevant ‘aformation. Although the lavesctigeting officer sctad

thac defendant ‘ed been in and owt of ‘ail and had failed to keep

~2 comctact with his probation officer or take advantage of the

rehabi.icative process, he described defendant as “an (intelligent

anc personable individual whe would probably sot plen the surder

of an individual * * * for persumal gaia.” Additionally, the

officer indicated his egreement with defendant's attorney thet

the surder was 4 spontaneous killing .* Wich the exceptica of

defendant's clais chet another commicted the gurders, the state

presected so evidence rebuttiag defendant's proof as to

wicigatiog factors

: Defendant claimed, at oral argument, that Detective Oviede,

the chief homicide officer on the case, indicated his belief that

che wictia caught defendant burglariziog ber residence and went

after bia with « hatchet. The only evidence that this was his

opinion is fownd in « letter, attached tc the sentence report,

wricten by defendant's attorney parapnrasiog detective. When

the probation officer iaterviewed che detective, however, Oviedo

made an official recommendation chat defendant receive the death

penalty

A.R.S. § 13-7030) requires the sentencing court to “return «

special verdict setting forth its findings as to the existence or

somexistence of each of the cirewmstances set forth is subsection

F of this section end as to the existence of any of the

cirewstances included in subsection G of this section.” A

oumber of trial courts heve iaterpreted this as requiring thes to

state, on the record, their reasons and conclusions, as to both

che existence and sonexistence of sitigeting factors. See e.¢.,

Stete v. Seith, 141 ariz. 510, 687 P.2¢ 1265, State vw. Caja, 126

Ariz. 25, 612 P.24¢ 491 (1980). Although we have previously

stated chat such detailed findings are seicther required sor

necessary, State v. Vickers, 129 Ariz. $06, 516, 633 P.2¢ 315,

225 (1981), we dbellewe that the becter practice is for the trial

court to place, on the record, « list of all factors offered by «

defendant io sitigetion and then explain his reasons for

acceotiag or reiecting them. Thus, the reviewing court can be

wure chat all witigeting factors heve been considered by the

court prior to sentencing. See Lockett v. Chic, 438 0.5. 586, 98

S.Ct. 2954, S7 L. £4.24 973 (1978) (eiced States Supreme Court

held apconsticutiona! death penalty statutes that restricted the

right of « defendant to show sitigeting circumstances that sight

relieve bia of the death penalcy) and Eddings v. Oklahoma, 455

U.S. 104, 102 $.ce. 669, TL L.Ed.24¢ 1 (1982) Gequiriag courts

must consider all relevant sicigating evidence). [¢. at 117, 102

$.ce. at 878, 71 L.f¢.2¢ at 12. Justice O'Commor, is her

concurrence, explained that when ic «as unclear whether the cria)

court ‘es considered all aicigeting factors, the case gust be

-2@-«

cemandec

In apy event, we sey sot speculate as to

whether the trial fudge and the Court of

Criminal Appeals actually considered 411 of

the Sts tgetias fectors and found che

tasufficient to offset the aggravating

circumstances * * * enc seres

require as Co remove any (eq icisate s for

fincing ambiguity concerning the factors

ectua..y comsidered bw che trial court

gS. at 119, 102 S.Ce. ot 879, Tl L.Bé.24. ot 14. Ie ohort, if we

cammot ¢eteraise from che record whether the erie] court

coms icerec 4.. the relewant sicigeatiog factors, the federa!

coast. cution compels us to remand the case for further

ex> Lanatiocon Prectically, wlese the trial judge Cel.s ws whet

factors he has considered and why he has relected thes, we cannot

eesure ourselves that be has ected sroperl+

Seceuse we are remanding for sew trial, we do sot address

defendant's other arguments concerning the propriety of his

sentence or the constitutionalicy of che desth pesalty Reversed

enc remanced for sew crial

FELOMAN, Justice, concurring in pert and dissenting in pert,

I agree wich che result and with all portions of the opinion except

that (slip op. et 20) ie which the asajority concludes ic is unnecessary to

give tastructions which would permic the fury to fiad defendant guilty of

burglary but sot guilty of felony-aurder. [ beliewe that under the facts

of this case such lastructions are required. beck v. Alabame, 447 7.5.

625, 100 $.Cce. 2382 (1960).

Defendant edmitted chat he commicted burglary but clalaed thet “rs.

Rabb was alive whee he left the house and thet two umidestified sersces

Later entered the house, ssseulted and «illed her. This versice of che

events received some support from che testiaony of « seighber whe reverted

having seen Cwo suspicious Looking cheracters peering over the victia’s

wall. Tis, « clear question of fact was presented end, if defendant's

version was believed Sy the ‘ury, it should seve comvicted his of vurglery

but ecquicted his of surder. Sy refusing to give instructions that would

neve vermitted this result, the court presented the fury with the Gobeca’s

choice of either freeing an admitted crisisa!l or comvictiag hia of felcny-

murder. This is the very result which Seck held was forbidden by che

Comsticution beceuse ic enhances the possibility that the fury will

erroneously find the defendast guilty of the felomy-aurder charge. The

cis of such « result “cammot be tolerated is « case is which the

defendant's life is et stake.” Seck, supra. at 627-638, 100 S.ce. at

2389-2390.

im reaching their conclusion, the eajoricy of this court cites jerrett

%. Usited States, 471 0.5. , 105 S.Ct. 2607 (1985). Thee case

concerned multiple pusishments, « legal issue unrelated to the Jeck

-~ 2% «

prisciple. Further, the asjority geiss sc support froe the techeic«!

@istioctions of lesser included offease aade by Arizvce cases such a« Sate

v. Arias, 131 ariz. 441, Gel P.2¢ 1285 (1982).

The element che Court is Seck thought essential to « fair

Criel was cot siaply « lesser ioclulded offense Lastructica

ie the ebetract, but the enhanced reticonslicy end reliabilircy

(which) the existence of (such! @ tasesustion tenvetusss

iete the jury's delibersticas. ..

The Court is Tecognized cheat the fury's role is the

criaisael » is essentially umrevieweDle anc sot alwevs

retiona. The ebeence of « lesser Locleded offense

(aetruction isereases the risk thet the fury will ccevict,

sot because ic ls perwueded chet che defendant is

capital gurder, Sut siaplr to evold setting che de

free. is the Court found thet risk

iaconsisc th the reliabilicy this court bes desended is

capital proceediags. (citatice cmicted! The goel o

Wek A is to eligisete the distc

tact-tiading process inat is created when the jury is

forced iatc em 41l.-or-sethiag choice between capitse. surcer

emd inasocence.

Spesianc v. F.orids. g.s. , 10@ §$.Ce. F154, 3160 (1984)

This priaciple coutrols the situation presented by the case before s

amc requires chat the burglary iastruction be giver In oy view, the

question is sot whether the upderlying felony aeets the technica!

Gefiaition of « lesser iacluded offense when che charge is felony-aurde.

Rather, the question is whether the evidence would support « verdict ch:

che defendant is guilty of the usderlyiag felony Sut soc of felcoer~aurdr.

ie euch « factual context, Beck teaches thet the jury cannot be resent:

with ep all-cr-aethiag choice Sut gust be gives the third optics. The im

mast be able co reach apd decide choee Leeues fairly presented by che

evidence. A differenc rule cannot be justified.

I join in Justice Feldman's opinion.

Vice Chief Justice

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