Petition for Writ of Certiorari — Lewis v. Jeffers

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NO. 89- JUL 49 «1989

IN THE SUPREME COURT OF THE UN

October Term, 198%

JAMES R. RICKETTS, Director, Arizona

Department of Corrections, and DONALD

WAWRZASZEK, Superintendent, Arizona State

Prison,

Petitioners,

-VvVs-

JIMMIE WAYNE JEFFERS,

Respondent,

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT K. CORBIN

Attorney General of

the State of Arizona

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

*GERALD R. GRANT

Assistant Attorney General

Department of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602)542-4686

Attorneys for PETITIONERS

*Counsel of Record

QUESTION PRESENTED

May a federal court set aside a state

court's finding of an aggravating

circumstance in a capital case without

applying a standard that requires some

deference to the state court's finding?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CASES AND AUTHORITIES

OPINION BELOW

STATEMENT OF JURISDICTION

CONSTITUTIONAL FROVISIONS INVOLVED

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATION

APPENDIX A

APPENDIX B

lh ns

TABLE OF CASES AND AUTHORITIES

Cases Page

Adamson v. Ricketts

865 F.2d 1011 (9th Cir. 1988) 12

Barclay v. Florida

463 U.S. 939 (1983) 11,13

Chaney v. Lewis

801 F.2d 1191 (9th Cir. 1986) 12

Godfrey v. Georgia

446 U.S. 420 (1980) 13,14

Jeffers v. Ricketts

627 F. Supp. 1334 (D. Ariz. 1986) 9

Jeffers v. Ricketts

832 F.2d 476 (9th Cir. 1987) 10,12,13

Magwood v. Smith

791 F.2d 1438 (llth Cir. 1986) 15,16

State v. Brookover

124 Ariz. 38

601 P.2d 1322 (1979) 19

State v. Ceja

126 Ariz. 35

612 P.2d 491 (1980) 20

State v. Graham

135 Ariz. 209

660 P.2d 460 (1983) 18

State v. Jeffers

135 Ariz. 404

661 P.2d 1105 (1983) 9,15,16

-1iii-

State v. Poland

144 Ariz. 388

698 P.2d 183 (1985) 22

State v. Smith

138 Ariz. 79

673 P.2d 17 (1983) 17

State v. Watson

120 Ariz. 441

586 P.2d 1253 (1978) 8,21

Woratzek v. Ricketts

820 F.2d 1450 (9th Cir. 1987) 16

Authoriti

28 U.S.C.

1254(1) 2

1291 2

2253 2

2241 es 2

2254 2

2254(d) 11,15,16

AUDA

United States Constitution

Eighth Amendment 3

Fourteenth Amendment 3

-iv-

OPINION BELOW

A three-member panel of the Ninth

Circuit upheld Jeffers’ convictions for

first degree murder and assault with a

deadly weapon and rejected his claim that

he was denied an impartial sentencing

tribunal. The panel also held that

Arizona's “especially heinous, cruel or

depraved” aggravating circumstance is not

void on its face. Two members of the

panel, however, concluded that the

Arizona courts erroneously applied this

aggravating circumstance to Jeffers’

conduct and therefore set aside his death

sentence. (Appendix A.)

—

STATEMENT OF JURISDICTION

On February 27, 1986, Jimmie Wayne

Jeffers appealed the order of the United

States District Court for the District of

Arizona denying his application for writ

of habeas corpus under 28 U.S.C. §§ 2241

and 2254. The Ninth Circuit had

jurisdiction to hear the appeal pursuant

to 28 U.S.C. §§ 1291 and 2253.

The Ninth Circuit filed its opinion on

November 9, 1987, and denied rehearing on

April 14, 1989. (Appendices A and B.)

This petition is timely filed within

90 days of entry of judgment by that

court. Petitioners invoke this Court's

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The pertinent portion of the Eighth

Amendment to the Constitution of the

United States:

{[NJor cruel and unusual

punishments inflicted.

The pertinent portion of the Fourteenth

Amendment to the Constitution:

{[N]Jor shall any state deprive any

person of life, liberty, or

property without due process of

law

;

STATEMENT OF FACTS

In August of 1976, Jeffers was being

held in the Pima County Jail on charges

of receiving stolen property. While

there, he received reports that his

girlfriend, Penelope Cheney, was

providing the police with information

about Jeffers and certain heroin

transactions. Jeffers wrote a note to

another jail inmate offering him money if

he would kill Cheney. The detention

officer who was supposed to deliver the

note seized it and read it.

Jeffers was released on bond on

October 8, 1976. Shortly afterwards, he

began living with Doris Van Der Veer in

the Linda Vista Motel in Tucson. Jeffers

had Van Der Veer deliver a note to

Cheney. In the note, Jeffers asked

Cheney to come back to him.

On October 20, 1976, Jeffers told Van

Der Veer that Cheney was coming over and

0 p.Aa ae whites cmiinpate St.

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asked her to leave during Cheney's

visit. As Van Der Veer was leaving the

motel room, Cheney was arriving and

Jeffers introduced the two women.

Jeffers and Cheney than went inside the

motel room.

Van Der Veer waited around the motel

grounds for about 2 hours. She then went

back to the motel room and knocked on the

door. Jeffers answered and told Van Der

Veer to come in. Jeffers had a gun in

his hand and Cheney, who appeared to be

cyanotic, was lying on her back on the

bed. Van Der Veer said she would leave,

but Jeffers pointed the gun at her, told

her to sit down and said that he needed

her help. He then injected what appeared

to be heroin into Cheney's hand and said,

"I have given her enough shit to kill a

horse and this bitch won't die."

At Jeffers’ direction, Van Der Veer, a

former nurse, checked Cheney's

Se ee

condition. Cheney's heartbeat was faint,

her breathing was labored, and a foamy

fluid (a sign of a drug overdose) was

coming out of her mouth. When Van Der

Veer asked Jeffers if he was going to

help Cheney, he responded, “No, I'm going

to kill her.”

Jeffers cursed at Cheney and then took

her belt off. Straddling her body,

Jeffers began choking her with the belt.

When Cheney continued to breathe, Jeffers

began choking her with his hands. Van

Der Veer told Jeffers to stop because

Cheney was going to die anyway, but he

responded, “No, I've seen her this way

before and she's come out of it."

Jeffers continued choking Cheney and then

told Van Der Veer to see if Cheney was

dead. Van Der Veer could not find a

pulse and told appellant that Cheney was

dead.

Jeffers then prepared another syringe

of heroin and forced Van Der Veer to

inject it into Cheney's groin and hand.

He also told her to get on top of Cheney

and choke her. Jeffers took photographs

of Van Der Veer as she complied with his

orders.

Apparently still not satisfied, Jeffers

again straddled Cheney and began beating

her with his hands, calling her a “bitch"

and a “dirty snitch.” As he delivered

the blows, Jeffers said, “This one is for

{naming several names]." He finally

dragged Cheney's body into the bathroom

and put it in the shower.

After 3 days in the shower, the body

began to smell. Jeffers and Van Der Veer

wrapped the body in garbage bags and put

it in a sleeping bag. That night they

loaded the body into the trunk of Van Der

Veer's car. They then drove to the

Sedona area and buried Cheney's body.

The state later charged Jeffers with

the first-degree murder of Cheney and

with aggravated assault on Van Der Veer.

On February 9, 1978, a jury found Jeffers

guilty of both charges. The trial court

sentenced Jeffers to death for the murder

and to a.prison term of not less than

5 years nor more than 10 years for the

assault.

While Jeffers’ appeal was pending, the

Arizona Supreme Court ordered him

resentenced pursuant to State v. Watson,

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

July 10, 1980, the trial court found two

aggravating circumstances (that Jeffers

created a grave risk of death to Van Der

Veer and that he committed the murder in

an especially heinous, cruel and depraved

manner) and again sentenced Jeffers to

death. The matter then returned to the

Arizona Supreme Court which affirmed the

convictions and sentences. State v.

Jeffers, 135 Ariz. 404, 661 P.2d 1105,

cert. denied, 464 U.S. 865 (1983). In

affirming the death sentence, the supreme

court overturned the trial court's “grave

risk of death” finding and its finding

that the murder was “especially cruel.”

It affirmed the finding that the murder

was “especially heinous and depraved.”

Jeffers then sought federal habeas

relief. On February 4, 1986, the

district court denied relief. Jeffers v.

Ricketts, 627 F. Supp. 1334 (D. Ariz.

1986). Jeffers appealed this decision to

the Ninth Circuit. On November 9, 1987,

a three-member panel cf the Ninth Circuit

rejected Jeffers' attacks on his

convictions. Two mnembers of the panel,

however, vacated Jeffers’ death sentence

on the ground that the “especially

heinous or depraved” aggravating

circumstance was incorrectly applied to

Jeffers. Jeffers v. Ricketts, 832 F.2d

476 (9th Cir. 1987). The state moved for

rehearing and suggested a rehearing

en banc. The Ninth Circuit denied both

requests on April 14, 1989. The state

then filed this petition for writ of

certiorari.

REASONS FOR GRANTING THE WRIT

This case presents the question of the

proper standard federal courts should

apply in reviewing state court findings

of aggravating circumstances in capital

sentencing decisions. In general,

federal habeas review of state

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oe. ee

0 ew. Gee

court convictions is limited and

deferential. For example, federal courts

must give state court factual findings a

presumption of correctness. See

28 U.S.C. § 2254(d). With respect to

findings of aggravating circumstances, a

plurality of this Court hrs stated that

its review is limited to determining

whether the findings are so unprincipled

or arbitrary as to somehow violate the

United States Constitution. Barclay v.

Florida, 463 U.S. 939, 947 (1985).

In this case, however, the Ninth

Circuit did not employ a deferential

review of the state court’s finding that

Jeffers committed this murder in an

especially heinous or depraved manner.

Instead, the Ninth Circuit substituted

its assessment of the facts for that of

the state court. This type of review is

inconsistent with principles of

federalism and comity.

elie

The Ninth Circuit began its analysis by

rejecting Jeffers’ claim that Arizona's

“especially heinous, cruel or depraved”

aggravating circumstance is

unconstitutionally vague on its face.

Relying nm an earlier decision in Chaney

v. Lewis, 801 F.2d 1191 (9th Cir. 1986),

cert. denied, 481 U.S. 1023 (1987), the

federal court concluded that Arizona's

court had narrowly construed the meaning

of this circumstance so that sentencing

discretion was sufficiently limited to

prevent arbitrary and capricious capital

sentencing decisions. Jeffers v.

Ricketts, 832 F.2d at 482.

The court

1. Seven members of the Ninth

Circuit's limited en banc court of ll

judges later reached the opposite

conclusion. See Adamson v. Ricketts, 865

F.2d 1011, 1031-39 (9th Cir. 1988). The

state’s petition for writ of certioreri

from the Adamson decision is presently

pending before this Court.

-})2-

went on to conclude, however, that this

narrow definition of the aggravating

7 circumstance could not be applied to

: Jeffers’ case “without losing its ability

to distinguish in a principled manner

between those it condemns to death and

those it does not.” 832 F.2d at 486.

While Jeffers’ murder of Penelope Cheney

_ “certainly qualifie[d]" as a “grizzly

affair,” the Ninth Circuit found it

_ insufficiently “shocking” to meet

Arizona's standard for especially heinous

or depraved murders. 832 F.2d at 484.

-In doing so, the Ninth Circuit paid no

deference to the state court finding. It

merely substituted its judgment for that

of the Arizona courts, which a federal

court should not do. See Barclay v.

Florida, 463 U.S. at 947.

The Ninth Circuit relied heavily on

Godfrey v. Georgia, 446 U.S. 420 (1980),

eiD=

;

‘

in setting aside Jeffers’ death

sentence. The Ninth Circuit has

misapplied the Godfrey decision.

Godfrey's death sentence was based on a

jury's finding of the “outrageously or

wantonly vile” aggravating circumstance.

The jury, however, received no guidance

from the trial court on the meaning of

the aggravating circumstance. In its

appellate review of the jury's finding,

the Georgia Supreme Court simply stated

that the finding was “factually

substantiated.” As Justice Marshall

po‘nted out in his concurring opinion, it

was the failure of the Georgia courts to

narrowly define and apply the aggravating

circumstance that required reversal of

Godfrey's sentence, not this Court's

conclusion that the facts did not support

the jury's finding. Godfrey v. Georgia,

446 U.S. at 435 n.1. In Jeffers’ case,

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“A

’

the aggravating circumstance was

initially found by the trial judge, who

had the benefit of numerous Arizona

Supreme Court decisions that narrowly

interpreted the meaning of the

circumstance. On appeal, the Arizona

Supreme Court carefully reviewed the

trial judge’s finding and even

invalidated a portion of it. State v,

Jeffers, 135 Ariz. at 429-30, 661 P.2d at

1130-31. Under these circumstances,

Godfrey does not authorize the type of

review that the Ninth Circuit employed

here.

There is conflict within the circuits

over the proper standard of review for

state court findings of aggravating

Circumstances. The Eleventh Circuit has

suggested that these findings are

entitled to a presumption of correctness

under 28 U.S.C. § 2254(d). Magwood v.

~15-

Smith, 791 F.2d 1438, 1449 (llth Cir.

1986). In a decision preceding Jeffers,

the Ninth Circuit relied on

28 U.S.C. § 2254(d) in upholding an

aggravating circumstance. Woratzek v.

Ricketts, 820 F.2d 1450, 1459 (9th Cir.

1987). In Jeffers, however, the Ninth

Circuit seems to apply a de novo review

of the aggravating circumstance, paying

no deference to the state court finding.

This Court should accept certiorari to

set a standard for federal courts to

apply in reviewing state court findings

of aggravating circumstances. The issue

is an important one and the conflict in

the circuits should be resolved.

II.

The Ninth Circuit Incorrectly

Applied Arizona Law.

In concluding that the “especially

;

heinous or depraved” circumstance could

ele

not be applied to Jeffers’ conduct, the

Ninth Circuit reviewed a number of

Arizona cases that discussed this

circumstance. According to the Ninth

Circuit, these cases demonstrate that

Jeffers’ conduct was not especially

heinous or depraved. A review of the

cases, however, establishes just the

opposite:

l. State v. Smith, 138 Ariz. 79, 673 P.2d

17 (1983).

The only evidence that Smith murdered

in an especially heinous or depraved

manner was the uncorroborated testimony

of his accomplice that, after the

victim's body had been buried, Smith had

requested the playing of a tape of the

) song, “We Are the Champions.” Evidence

| also showed that Smith later attempted

Suicide, partly out of remorse over the

murder. The Arizona Supreme Court

concluded that this evidence did not

establish beyond a reasonable doubt that

Smith had a heinous and depraved attitude.

In contrast, the evidence establishing

Jeffers’ heinous and depraved attitude

dealt with his conduct during or

immediately after the killing. The

evidence also did not come from an

accomplice, as did the evidence in

Smith. Doris Van Der Veer was the victim

of the assault with a deadly weapon

charge in this case, and Jeffers forced

her to become involved in Cheney's

murder. Finally, Jeffers, unlike Smith,

expressed no remorse over the murder.

2. State v. Graham, 135 Ariz. 209, 660

P.2d 460 (1983).

Graham, who suffered from organic

brain damage and was extremely immature

and easily influenced by others, killed a

man by shooting him twice. After the

-18-

murder, Graham smiled while telling

friends that the victim “squealed like a

rabbit” when he was shot. The Arizona

Supreme Court concluded that Graham's

statement about the killing was more

likely attributable to his immaturity,

nervousness and need to impress his peers

than to a hardened attitude towards the

death of another.

Jeffers was not immature or easily

influenced by others and did not suffer

from organic brain damage. His comments

were made while straddling and repeatedly

striking his dying victim. His words and

conduct, unlike Graham's, showed an

especially heinous or depraved state of

mind.

3. State v. Brookover, 124 Ariz. 38, 601

P.2d 1322 (1979).

Brookover, as part of a drug ripoff,

shot his victim in the back. As the

-~19-

victim lay on the floor moaning,

Brookover said, “Don't worry * * * it

will be over soon" and shot him again in

the back. The Arizona Supreme Court

concluded that the murder was not

especially heinous or depraved.

Penelope Cheney, unlike Brookover's

victim, did not suffer a relatively quick

death. Jeffers, unlike Brookover,

climbed atop his victim and debased her

by striking and cursing her. Jeffers

killed his victim because she had

“snitched” on him and his words and

conduct show that he relished the killing.

4. State v. Ceja, 126 Ariz. 35, 612 P.2d

491 (1980).

Ceja murdered two people in order to

steal a large amount of marijuana from

them. He shot the first victim seven

times, four times in the head at close

range. He shot the second victim four

times, twice at extremely close range,

and then kicked him in the face. The

Arizona Supreme Court concluded that the

murders were especially heinous and

depraved.

If anything, Jeffers’ conduct was more

reprehensible than Ceja's. Jeffers

overdosed his victim with heroin,

strangled her with a belt and with his

hands, and then climbed on top of her to

beat and curse her. Jeffers was

certainly as determired to kill as Ceja,

and surpassed Ceja in personally debasing

his victim.

5. State v. Watson, 120 Ariz. 441, 586

P.2d 1253 (1978).

Watson and Reid burglarized a home.

While Watson was upstairs, the homeowner

began shooting at Reid. Watson came back

downstairs and shot the victim in the

back four times, the last time while the

Sie

victim was face down on the floor. The

Arizona Supreme Court concluded that this

killing was not especially heinous or

depraved.

Penelope Cheney, unlike Watson's

victim, did not initiate violence that

led to her death. Watson, unlike

Jeffers, did not debase his victim by

striking and cursing him. Watson, unlike

Jeffers, had no firm intent to kill

anyone and used deadly force only after

the victim did.

6. State v. Poland, 144 Ariz. 388, 698

P.2d 183 (1985).

The Poland brothers were convicted of

the murder of two armored car guards.

There was no direct evidence regarding

the circumstances surrounding the

deaths. It was this lack of evidence

that led the Arizona Supreme Court to

conclude that the state had failed to

29>

prove that the murders were heinous or

depraved.

There is no lack of evidence regarding

the circumstances of Penelope Cheney's

death and Jeffers’ role in it. His words

and actions plainly establish the

heinousness and depravity of this murder.

Thus, even under the standard of

review the Ninth Circuit employed here,

the decision to set aside Jeffers’ death

sentence is erroneous. The Ninth Circuit

reached its result through a

misinterpretation of Arizona case law.

CONCLUSION

This case merits this Court's

attention. Without a standard for

federal court review of state court

findings of aggravating circumstances,

conflicts between the circuits will

continue. The Ninth Circuit set aside

Jeffers’ death sentence based upon

o23-<

misinterpretations of the decisions of

this Court and of the Arizona courts.

Petitioners therefore respectfully ask

this Court to grant review.

DATED this 13th day of July, 1989.

| Respectfully submitted,

ROBERT K. CORBIN

Attorney General

JESSICA GIFFORD FUNKHOUSER

Chief Counsel

Criminal Division

tals 0 SA

unit & xrant

GERALD R. GRANT

Assistant Attorney General

(Counsel of Record)

Attorneys for PETITIONERS

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AFFIDAVIT

STATE OF ARIZONA )

COUNTY OF MARICOPA aes

GERALD R. GRANT, 4 member of the Bar of

this Court, being duly sworn upon oath,

deposes and says:

That he served three copies of the

Petition for Writ of Certiorari upon

Donald S. Klein and Frank P. Leto, Pima

County Public Defender's Office, 32 North

Stone Avenue, Tucson, Arizona, 85701,

Attorneys for Jimmie Wayne Jeffers, by

depositing the same in the United States

Mail, with first class postage prepaid,

return receipt requested.

Additionally, as a courtesy, he

herewith certifies that service of three

copies of this petition has been made

upon the United States of America by

deposing the same in the United States

Mail, with first class postage prepaid,

o26-

addressed to the Solicitor General,

Department of Justice, Washington, D.C.,

20530.

DATED this 13th day of July, 1989.

i owt

LUae K

GERALD R. GRANT

Assistant Attorney General

Criminal Division

Department of Law

1275 West Washington

Phoenix, Arizona 85007

Telephone: (602)542-4686

SUBSCRIBED AND SWORN to before me this

13th day of July, 1989.

NOTARY PUBLIC

My Commission Expires:

______December 10, 1989

0124D jd

o26-

APPENDIX A

{Filed November 9, 1987)

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIMMIE WAYNE JEFFERS,

CA No. 86-1840

DC No. CV-85-945-ACM

Petitioner-Appellant,

JAMES R. RICKETTS,

Director, Arizona

Department of Corrections;

DONALD WAWRZASZI «,

Superintendent, Arizona

State Prison,

OPINION

Respondents-Appellees.

me eee ee ee ee ee

Appeal from the United States District

Court for the District of Arizona

Alfredo C. Marquez,

District Judge, Presiding

Argued and Submitted February 13, 1987 -

San Francisco, CA

Filed

BEFORE: PREGERSON AND CANBY, CIRCUIT

JUDGES AND WILSON*

District Judge

* The Honorable Stephen V. Wilson,

United States District Judge for the

Central District of California, sitting

by designation.

CANBY, CIRCUIT JUDGE:

Jimmie Wayne Jeffers appeals the

dismissal of his petition for a writ of

habeas corpus, filed pursuant to

28 U.S.C. § 2254. Jeffers’ habeas

petition challenges his convictions for

assault with a deadly weapon and first

degree murder and his sentence of death.

We affirm in part, reverse in part, and

remand for proceedings consistent with

our opinion.

FACTS AND PROCEDURAL HISTORY

Jeffers* was convicted of murdering

Penelope Cheney and of assaulting Doris

Van der Veer with a deadly weapon.

Penelope Cheney had been Jeffers’

girlfriend and had been arrested with

Jeffers in May of 1976 on state charges

of receiving stolen property. Jeffers

had posted bail for Cheney, but had been

unable to post bond for himself and

remained in custody at the Pima County

af=2e

Jail. While in jail Jeffers received

reports that Cheney had been cooperating

with the police, providing information to

them about Jeffers and certain heroin

transactions. Jeffers wrote a note to

another jail inmate offering him money if

he would kill Cheney. The detention

officer who was supposed to deliver the

note read it and seized it. Jeffers was

finally released on bail in early October.

Later that same month, Jeffers was

living with Doris Van der Veer in the

Linda Vista Motel in Tucson, Arizona.

Jeffers sent a note to Cheney requesting

that she meet with Jeffers. On

October 20th Jeffers told Van der Veer

that Cheney was coming over and asked her

to leave while Cheney was there. Cheney

arrived at the motel room when Jeffers

and Van der Veer were there. The two

women met briefly and Van der Veer then

went outside, leaving Jeffers and Cheney

eAo eo

in the room. Approximately two hours

later Van der Veer returned to the motel

room and knocked on the door. Jeffers

opened the door. Jeffers had a gun in

his hand; Cheney was lying on the bed and

appeared to be cyanotic. While Van der

Veer watched, Jeffers injected a Liquid

into Cheney's hand and said, “I have

given her enough shit to kill a horse and

this bitch won't die.” Jeffers told Van

der Veer, a former licensed practical

nurse, to check Cheney. Cheney's

heartbeat was faint, her breathing was

labored, and a foamy f!uid was coming out

of her mouth. Van der Veer asked if

appellant was going to help Cheney. He

responded, “No, I'm™ going to kill her.”

Jeffers straddled Cheney's body and began

choking her, first with his belt and then

with his hands. After it appeared that

she had died, Jeffers prepared another

syringe and forced Van der Veer to inject

-A-4-

heroin into Cheney's groin and hand. He

also told Van der Veer to get on top of

Cheney and choke her. He took

photographs of both of these acts.

Jeffecs then got on top of Cheney and

began beating her with his hands. As he

did this, he called her a “bitch” and a

“dirty snitch” and said, "This one is for

[naming several names).* Jeffers finally

dragged Cheney's body into the bathroom

and put it in the shower.

The body remained in the shower for

three days. When the body began to

smell, Jeffers and Van der Veer wt apped

it im garbage bags and put it ina

sleeping bag. That night they put the

body in the trunk of Van Der Veer’s car.

Jeffers and Van der Veer took Cheney's

body to a plac near Sedona, Arizona, and

buried it in a shallow grave.

On February 9, 1978, @ jury found

Jetters guilty of first-degree murder and

~A-5-

assault with a deadly weapon. The trial

judge sentenced Jeffers to death on the

first degree murder conviction. He also

sentenced Jeffers to not less than 5 nor

more than 10 years in prison on the

assault conviction. Jeffers appealed

from the judgments and the sentences

imposed.

AS a result of the appeal, Jeffers was

resentenced on the murder conviction. On

July 10, 1980, the trial court found two

aggravating circumstances and no

mitigating circumstances, and again

imposed the death penalty. The Arizona

Supreme Court aféirmed both the

convictions and the sentences. State v.

Jeffers, 135 Ariz. 404, 661 P.2d 1105

(1983). The sole aggravating

circumstance upheld by the Arizona

Supreme Court was that Jeffers had

committed the murder “in an especially

heinous. . . or depraved manner. * Ariz.

-A-6-

———————————— ————

Rev. Stat. Ann. §13-703(F)(6). The

Supreme Court of the United States denied

certiorari. Jeffers v. Arizona, 464 U.S.

865 (1983).

On December 2, 1983, Jeffers filed a

petition for writ of habeas corpus in the

district court. He subsequently filed an

amended petition and requested an

evidentiary hearing. On Feb. 4, 1986,

the district court denied Jeffers’ motion

for evidentiary hearing and dismissed his

petition. Jeffers v. Ricketts, 627

F. Supp. 1334 (D. Ariz. 1986). Jeffers

appealed to this court on Feb. 27, 1986.

DISCUSSION

A. Issues

Jeffers raises some 13 questions for

our consideration. Because we find that

Jeffers was unconstitutionally sentenced

to death, we need not reach some of the

issues he presents. The questions we

address are:

aheote

ht AO lg

1. Did the prosecutor's refusal to

grant immunity to a defense witness,

while granting immunity to four state

witnesses, violate Jeffers’ sixth

amendment right to compulsory process,

thereby denying due process?

2. Did certain evidentiary rulings at

his trial deprive Jeffers of due process?

3. Did the introduction of evidence of

other “bad acts” deny Jeffers a fait

trial?

4. Was Jeffers denied due process of

iaw when he made a single appearance

before the jury in jail clothing?

5S. Was Jeffers denied an impartial

sentencing tribunal?

6. Was Arizona's standard ot

aggravation for murder committed in an

“especially heinous ... oF depraved

manner” constitutionally applied to

Jeffers?

<A-8*

B. Matters “oncerning the Trial

1. Refusal to grant immunity to

defense witness

Jeffers contends that refusal to grant

immunity to a defense witness, when the

state had previously offered and granted

immunity to four state witnesses,

violated Jeffers’ sixth amendment right

to compulsory process and denied him due

process of law. The state granted

immunity to Doris Van Der Veer, Ramona

Eppling, Sharon Galarza, and Rich

Honton. The state refused to grant

immunity to Louis Rosso, who was called

to the stand to help Jeffers establish

his alibi defense.

Denial of immunity for a defense

witness can violate due process. United

States v. Lord, 711 F.2d 887 (9th Cir.

1983). The defendant is entitled to an

evidentiary hearing if he makes “an

unrebutted prima facie showing ot

prosecutorial misconduct that could have

prevented a defense witness from giving

relevant testimony." Id. at 891. In

order to make a prima facie showing of

prosecutorial misconduct, a defendant has

the burden of showing, first, that the

evidence was relevant and, second, that

the prosecution deliberately intended to

distort the judicial factfinding process

by geayine immunity to the defense

witness. Id. (citing with approval

Government of Virgin Islands v. Smith,

615 F.2d 964, 968 (3d Cir. 1980)).

Jeffers has not met,hi1s burden.

Jeffers testified that on the day that

Cheney died, he was out making a heroin

purchase. Earler in that week Van der

Veer and Jeffers had made a purchase from

Louis Rosso. Van der Veer testified that

on that occasion Rosso had sold Jeffers

enough heroin to satisfy Jeffers’ needs

for several days. Her testimony

-A-10-

ee ee en ee ee ee Le

therefore made Jeffers’ alibi that he was

out buying heroin somewhat less

credible. According to Jeffers, Rosso

would have testified that he had only

sold Jeffers a small quantity of heroin.

Although neither clearly exculpatory nvr

essential to the defense, Rosso’'s

testimony would have been relevant,

satisfying one element of the Lord test.

There is, however, no evidence

whatsoever of prosecutorial misconduct.

The defense did not make known until the

middle of the trial that it intended to

call Rosso. There is no suggestion that

the prosecutor made any threat to ROSSO

that induced him to invoke the fifth

amendment, as was prima facie shown to

have occurred in Lord, 711 F.2d at 891.

Nor is there any showing that the

prosecution presented a distorted factual

picture by immunizing its witnesses to

testify to one side of a story while

-A-11-

denying immunity to defense witnesses who

would present the other side. See United

States v. lessio, 528 F.2d 1079, 1080-82

(9th Cir.), cert. denied, 426 U.S. 948

—_——-

(1976); United States v. Paris, 812 F.2d

471, 477 (9th Cir. 1987). Jeffers’

challenge therefore fails the second

prong of the Lord test. See United

States v. Disla, 805 F.2d 1340, 1353 (9th

Cir. 1986). He has made no prima facie

showing that the decision not to grant

immunity to RoSSsO denied him a fair

trial. We affirm the district court's

decision on this issue.

2. Evidentiary rulings

Jeffers contends that evidentiary

rulings in capital cases must meet 4a

standard of “extra reliability.” He

draws support from the plurality opinion

in Ford v. Wainwright, 106 S.Ct. 2595, 91

L.Ed.2d 335 (1986), which stated that

“(ijn capital proceedings generally, this

-A-1l2-

Court has demanded that factfinding

procedures aspire to a heightened

standard of reliability." Id. at 2603,

91 L.Ed.2d at 347. Insofar as Jeffers’

argument suggests that evidentiary

rulings and their review are subject to a

totally different methodology in capital

cases from that in all other Criminal

cases, we do not accept it. we readily

agree, however, that we must review

capital cases wit! neightened concern for

the reliability of the state court's

procedures, see Spaziano v. Florida, 468

U.S. 447, 456 (1984), because “the

penalty of death is qualitatively

different from a sentence of

imprisonment, however long.” Woodson Vv.

North Carolina, 428 U.S. 280, 305 (1976)

(plurality opinion of Stewart, J.). Even

by that standard, however, we find that

none of the challenged state court

-A-13-

evidentiary rulings amount to

constitutional error.

a. Exclusion of Myron McRoberts’

Testimony

In order to show that only Van Der

Veer, and not Jeffers, was with Cheney at

the time of her drug overdose and death,

the defense called Myron McRoberts, 4a

quest at the motel. He testified that he

saw Van Der Veer and a blonde woman

(presumably Cheney) leave-the motel

together on the day in question. Among

the reasons offered by McRoberts why he

remembered the events on the day of

Cheney's death, more than 14 months prior

to his testimony, was that he was told

“there [was] a cute blonde in room 7.”

The trial court excluded that statement,

and Jeffers contends that the court

erred. The Arizona Supreme Court heid

that the evidence was improperly exc luded

as hearsay, but that the error was

-A-14-

harmless. We find no constitutional

error. The evidence was cumulative of

other testimony offered by McRoberts.

Its exclusion will not support the

granting of habeas corpus relief.

b. Prior “bad acts" involving Cheney

Jeffers also contends that the trial

court committed constitutional error when

it admitted statements of Cheney through

the testimony of Edith Meck, the manager

of the apartment complex where Jeffers

was living et the time, and of Nurse

Ramirez, a nurse at Tucson Medical Center

where Cheney went to be treated in

November of 1975. Meck testified that

Cheney said that Jeffers had drugged her

and had thrown her through the bedroom

window. Ramirez testified that Cheney

said that her boyfriend had drugged her

and that she had jumped through the

bedroom window because she feared further

violence from Jeffers. The Arizona

Supreme Court held that the statement

made to Meck was properly admitted under

the excited utterance exception to the

hearsay rule. It held that most of the

statement made to Ramirez was properly

admitted under the medical treatment

exception. The comment that her

boyfriend had drugged her was held

improperly admitted, but harmless,

beceuse it was cumulative of the properly

admitted statements made to Meck.

The inability to cross-examine the

declarant Cheney did not deprive Jeffers

of a fundamentally fair trial. See

Barker v. Morris, 761 F.2d 1396 (9th Cir.

1985), cert. denied, 106 S.Ct. 8614

(1986). The confrontation clause permits

the introduction of out-of-court

statements if they are both necessary and

reliable. Barker, 761 F.2d at 1399. The

statement was sufficiently reliable as an

excited utterance. See, e.g. State v..

Peeler, 126 Ariz. 254, 614 P.2d 335 (Ariz

App. 1980). Moreover, Cheney's

statements were partially corroborated by

independent evidence.

Cheney's statements were also

necessary. At trial Jeffers contended

that he loved Cheney and that he would be

unable to hurt her. The challenged

testimony was necessary to rebut this

contention. We conclude that the

admission of Cheney's statements to Meck

and Ramirez did not deprive Jeffers of a

fair trial.

3. Other “bad acts” testimony

Jeffers contends that the admission of

evidence of other “bad acts” denied him a

fair trial. The evidence of prior bad

acts was elicited through the testimony

of the immunized witness Sharon Galarza.

Galarza testified that Jeffers had

committed other acts of violence,

including assaults with drugs, knives and

-A-17-

guns, upon Galarza, Cheney, and others.

For Galarza‘s willingness to testify for

the prosecution, the state dropped drug

and prostitution charges against her.

Her testimony is reported in State v.

Jeffers, 135 Ariz. at 416-17, 661 P.2d at

1117-18.

Rule 404(b) of the Arizona Rules of

Evidence, like the federal rule, forbids

admission of evidence of a defendant's

prior crimes, wrongs, or acts “to prove

the character of a person in order to

show that he acted in conformity

therewith.” The trial court instructed

the jury that it could consider the

evidence of bad acts to show a common

scheme or plan, identity, or other

Similar purposes. On appeal, the Arizona

Supreme Court held that the evidence of

bad acts was admissible, not to show a

common plan or identity, but as an

explanation why the murder was not

-A-18-

reported sooner by those who were

threatened.

Jeffers argues that the evidence ought

not to have been admitted, but he offers

no reason why the Arizona Supreme Court's

ruling was erroneous. Our review of the

record discloses no ground for concluding

that the admission of the evidence denied

Jeffers a fair triai. See Colley v.

Sumner, 784 F.2d 984, 990 (9th Cir.),

cert. denied, 107 S.Ct. 142 (1986).

Jeffers’ real complaint is that the

evidence was admitted under one theory by

the trial court, and the jury was so

instructed, while the Arizona Supreme

Court held the evidence admissible on a

different theory.

An erroneous instruction by itself

justifies habeas relief only if it “so

infected the entire trial that the

resulting conviction violates due

process.” Cupp v. Naughten, 414 U.S.

~A-19-

141, 147 (1973). The trial court's

instruction had no such effect. Nor did

it lead to the evil that Rule 404(b) is

intended to prevent. Under the trial

court's instructions, the jury was not

permitted to consider the evidence of bad

acts to prove Jeffers’ character in order

to show that he acted in conformity with

that character. The district court did

not err in denying habeas relief.

4. Appearance before the jury in jail

clothing

Jeffers contends that his trial was

rendered unfair by his involuntary

appearance before the jury in readily

identifiable jail clothing. The facts

Surrounding the issue are not in

dispute. On one occasion Jeffers

appeared before the jury in his jail

clothing after telling his jailor that he

didn't want to wear his civilian clothing

to court. In order to prevail on this

-A-20-

issue, Jeffers must establish that the

appearance in jail clothing was

involuntary, Bentley v. Crist, 469 F.2d

854, 856 (9th Cir. 1972); that a juror

would recognize the clothing as issued by

a jail, United States v. Rogers, 769 F.2d

1418, 1422 (9th Cir. 1985); and that the

error was not harmless. Jeffers cannot

meet his burden. The choice of apparel

was his, the clothing was not readily

identifiable, and the jury already knew

that Jeffers had been incarcerated.

During voir dire the jurors were informed

of Jeffers’ efforts to escape from the

Pima County Jail. We affirm the district

court's denial of habeas relief on this

ground.

B. Sentencing Matters

1. Denial of an impartial sentencing

tribunal

Jeffers contends that his

constitutional rights were violated when

-A-21-

he was resentenced by Judge Birdsall, the

judge who had originally sentenced him.

After the initial sentencing, Judge

Birdsall became the en of a “mail

order blitz.” The Judge filed a

complaint with the postal authorities and

Jeffers’ name was provided to

investigators as the likely source of the

unwanted mailings. Jeffers admitted to

his part in the mailings; the mail blitz

ceased; and no charges were brought

against Jeffers. At his later

resentencing, Jeffers filed a motion for

a new judge. An evidentiary hearing was

held before a different judge and his

motion was denied. The Arizona Supreme

Court upheld the lower court's findings

that Jeffers had failed to establish

bias. It also observed that bias caused

by a defendant's voluntary conduct ought

not to be ground for disqualification.

-A-22-

The district court found that Jeffers

had received a full and fair evidentiary

hearing in state court and that there

was, therefore, no need for an

evidentiary hearing in federal court.

After reviewing the evidence, the

district court found that Judge

Birdsall’s conduct fell short of any

constitutional bias. We agree. We

reject Jeffers’ contention that there was

an appearance of impropriety that

required the district court to hold an

evidentiary hearing. Jeffers was not

treated unfairly in the circumstances he

brought into being. The district court

did not err in its ruling.

2. Application of the “especially

heinous, cruel or depraved"

aggravating circumstance

Jeffers contends that Arizona's statute

prescribing the death penalty when the

murder was committed in an “especially

-A-23-

heinous, cruel, or depraved manner” is

unconstitutionally vague on its face and

as applied. See Ariz. Rev. Stat. Ann.

§ 13-703(F)(6)(1982). His argument that

the statute is void on its face is

foreclosed by our decision in Chaney v.

Lewis, 801 F.2d 1191, 1194-96 (9th Cir.

1986), cert. denied, 107 S.Ct. 1911

(1987). There, we rejected a similar

challenge to the same statute, pointing

out that “[{a])lthough the statutory

language is broad, as any murder could be

considered cruel, heinous, or depraved,

the Arizona Supreme Court need not

construe the statute open-endedly.” Id.

at 1195. In so stating, we were echoing

the plurality opinion in Gregg v.

Georgia, 428 U.S. 153, 201 (1976), where

the Court upheld a Georgia statute

providing a death penalty if a murder was

“outrageously or wantonly vile, horrible

Or inhuman in that it involved torture,

-A-24-

depravity of mind, or an aggravated

battery to the victim.'” Id. (quoting

Ga. Code Ann. § 27-2534.1(b)(7); see also

Proffitt v. Florida, 428 U.S. 242, 255-56

(1976) (plurality opinion).

In Chaney, we also stated that “(t]he

Arizona Supreme Court appears to have

sufficiently channeled sentencing

discretion to prevent arbitrary and

Capricious capital sentencing

decisions.” Chaney, 801 F.2d at

1195.' Finally, we held that the death

' In Tison v. Arizona, 55 U.S.L.W.

4496 (U.S. April 21, 1987), petitioners

argued that Arizona had given an

unconstitutionally broad construction to

its aggravating factors in § 13-703. The

Supreme Court held that the issue was not

within the grant of certiorari, and

expressed no opinion on it. Id. at 4499

n.2.

The Tenth Circuit has recently held,

en banc, that Oklahoma had failed to give

an adequate narrowing construction to its

aggravating factor of murder that is

“especially heinous, atrocious, or

cruel.” Cartwright v. Maynard, 822 F.2d

1477 (10th Cir. 1987) (en banc).

-A-25-

sentence imposed upon Chaney was

consistent with the Arizona law as

established by the Arizona Supreme

Court: the murder was cruel because the

victim suffered greatly, and was depraved

because Chaney’s helpless victim (a

sheriff's deputy) was shot in the back

when Chaney could have made his escape

without again shooting the victim. Id.

While Chaney establishes that the

Arizona statute is not void on its face

and is capable of constitutional

application, it naturally does not answer

the question whether the Arizona statute

was constitutionally applied to Jeffers

in this case. In any individual

application, the statute must not be so

broadly construed that “(t]here is no

principled way to distinguish this case,

in which the death penalty was imposed,

from the many cases in which it was

not.” Godfrey v. Georgia, 446 U.S. 420,

-A-26-

433 (1980) (plurality opinion). After

reviewing the Arizona Supreme Court cases

defining “especially heinous .. . or

depraved,” we conclude that Jeffers'

death sentence violated the Eighth and

Fourteenth Amendment. See id. at 423.

“Heinous” and “depraved” are inherently

more difficult terms to define than is

“cruel.”’ The Arizona Supreme Court

This difficulty of definition is of

major importance because Arizona, unlike

some other states using similar

standards, applies “heinous, cruel, or

depraved” disjunctively. State v.

Richmond, 136 Ariz. 312, 319, 666 P.2d

57, 64, cert. denied, 464 U.S. 986

(1983); see Cartwright v. Maynard, 822

F.2d 1477 (9th Cir. 1987) (en banc)

(disjunctive application of “especially

heinous, atrocious, or cruel” struck down

for lack of adequate narrowing

construction); Rosen, The “Especially

Heinous” Aggravating Circumstance in

Capital Cases -- The Standardless

Standard, 64 No. Car. L. Rev. 941, 980-82

(1986). Problems of definition are

considerably reduced under the Arizona

standard when the facts of a case suggest

both cruelty and depravity. See, e.g.,

Chaney, 801 F.2d at 1195; Woratzek v.

Ricketts, No. 85-2367, slip op. at 17018

(9th Cir. June 25, 1987) (amended

opinion).

-A-27-

has defined cruelty to include the

infliction of physical and mental pain on

the victim. State v. Gretzler, 135-Ariz.

42, 51, 659 P.2d 1, 10, cert. denied, 461

U.S. 971 (1983). Especially cruel

murders involve the senseless or sadistic

infliction of great pain. State v,

Lujan, 124 Ariz. 365, 372, 604 P.2d 629,

636 (1979). In order to establish that a

murder is especially cruel, the court

must find beyond a reasonable doubt that

the victim was conscious and able to

suffer physical pain and mental anguish.

Id. The Arizona Supreme Court held that

such evidence was lacking in Jeffers'

case. State v. Jeffers, 135 Ariz. 404,

429, 661 P.2d 1105, 1130 (1983).

Jeffers’ death sentence accordingly rests

on the application of the more elusive

standard of murder committed in an

“especially heinous .. . or depraved

manner.”

-A-28-

The Supreme Court of Arizona has

adopted dictionary definitions of

“heinous” as “hatefully or shockingly

evil; grossly bad” and of “depraved” as

“marked by debasement, corruption,

perversion or deterioration.” State v.

Knapp, 114 Ariz. 531, 543, 562 P.2d 704,

716 (1977), cert. denied, 435 U.S. 908

(1978). Both terms “go to the mental

state and attitude of the perpetrator as

reflected in his words and actions.”

State v. Gretzler, 135 Ariz. at 5l, 659

P.2d at 10. In Gretzler, the Arizona

Supreme Court set forth factors which

lead to a finding of heinousness or

depravity, with examples of all but one.

They were:

(1) a relishing of the murder by

the killer. See State v. Clark,

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

cert. denied, 449 U.S. 1067 (1980)

(defendant murdered four people

-A-29-

and “kept a spent bullet as a

grisly souvenir of his crime");

State v. Bishop, 127 Ariz. 53l,

622 P.2d 478 (1980) (defendant

killed victim by repeated blows

with hammer, tied him up, caused

him to fall down mine shaft, threw

rocks on victim as he lay

twitching, drove away saying

“Good-by Norman. I hope we never

see you again”).

(2) gratuitous violence against

the victim. See State v. Ceja,

126 Ariz. 35, 612 P.2d 491 (1980)

(defendant shot female victim

twice, dragged her into another

room and shot her four more times

in head for no apparent reason;

shot male victim three times and,

after he had fallen, shot him once