# Opposition Brief — Bracy v. Arizona > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0265%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 474 U.S. 1110 ## Text EDITOR'S NOTE THE FOLLOWING PAGES WERE POOR HARD Copy AT THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BE OBTAINED, A NEW FICHE WILL BE ISSUED. tw é N - ‘ vw re TA ern, 98 A T E AR NA Rew wr F RAR ” aR r Pj Attorney General] f the State f Arizona WILLIAM J. SCHAFER hief Counsel riminal Divisior — ia Pr > + R. GRANT ant ment of Law ix, Arizona Attorney Washinator ‘ & . i d 4 384 ’ - ¢ — — Te. + th 4 ~ i ‘ a . Se ‘ ‘ ] Ari 14 rickla by > s t 4 5 . é C * 7046 ‘ ‘ ,i¢ ' nite tate A . ‘ ' g 49 of é $ ar ‘ . + er rTne ‘ ¥ ° »* © ¥ " ; t ‘ E ele Phelps, Mr Pedmor é . rw ” isit far ¢ " ; After tak - é , ] Iaqe " ‘ w = , .* Ww > ke fé . > Wr w ‘ fr > wou é ra Mr Redr r ha 7 j ead, ‘ ‘ t Ww r f é ree rder - Mr Redr ay Mr t ‘ teé ar err ’ ‘ v > w . n P. . rime i 2] adde har ae ‘ , ra , 7 . é j jré roder, naming ruZz ar ae aid 1 ) Maa r Dir > r Ir Auaust f 19ési, the tate ha ‘on 9 petiti er and Murray # per with the me re ime > ha 4 harge against 4 anc ruz »= ¢ N emt r > en =" *, a w 2 yA V t . ‘ ¢ rial 81] ar ruz zi , sar f beaga n December 10, 1981, the r ‘ na hoth mer »" ‘ - « wid ai int he Fr . irt ime eda 4earr oe sentence for bott en.~ 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, t t ” Qa o ® w ns 3 ® Qa nm oO o o > ” “ nr o ] 7 ® Po | 2] ® n nm c 4 45 *) 3 n Cc ta n ® > + - 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 i] I! 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 De ‘ 4 that the ré . f the -¢ t pe exa 3 f the pr ‘ ‘ 1a pe em arae jenr ‘ . " " ’ , ‘ ‘ ta he y Ame ime rig fa . ¢ ‘ t the w ‘ ‘ aga ‘ ‘ r r exa } ‘ f ‘ aa t t ‘ tate ‘ t ‘ e€ Ame ‘ > ‘ exa - 4 » ‘ 4 o¢ Rest ‘ mit t : ‘ ; xa : € ar ‘ rea 3 ‘ € » ¢t 3 rt ‘ L ‘ . + ete : ‘ ‘ ‘ ‘ ‘ f witne ‘ t e eff r ‘ ‘ at . i : ha ¢ sae " : ‘ « ; ‘ sat e + 4 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 my > *-* ,* ; -* , , « 4 e 1ai J in tne ia ‘ xe 3 defendant f petitioner and Hooper had ted Ryan f tem ; based : ‘ — the . ‘ SRkRESeRR #3 8 s =—_ 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. Iv 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. VI 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 Register Number C-01532 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? te ws 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 =e 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? °§ * = 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. rf 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 a 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 AJ 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 a 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 vn, y “ - ‘. - , ba /] » . 42> --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0265%3A4. Public record. Not legal advice.