Opposition Brief — Lewis v. Jeffers

Cale. Saree Cost. US.

eie FILED

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NO. 69 - ð JOSEP = K SPANIOL, UR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

JAMES R. RICKETTS, Director, Arizona Department of Corrections,

and DONALD WAWRZASZEK, Superintendent, Arizona State Prison,

Petitioners,

- vs -

JIMMIE WAYNE JEFFERS,

Respondert.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERTS

Respondent, JIMMIE WAYNE JEFFERS, asks leave to file the

accompanying Response to Petition For Writ Of Certiorari, without

prepayment of costs and to proceed jn forma pauperis. Respondent

has been granted leave to so proceed before the United States

Court of Appeals for the Ninth Circuit. Respondent's affidavit

in support of this motion is attached hereto.

paren tnic - n of august. 1606.

FRANK P. LETO

ATTORNEYS FOR RESPONDENT

32 N. Stone, Fourth Floor

Tucson, Arizona #85701

Telephone No. (602) 740-5300

IN FORMA PAUPERIS AFFIDAVIT

SUPREYE COURT OF THE UNITED STATES

(insert appropriate court)

Ss R. RICKETTS, et sec

(Petitioner)

v. AFFIDAVIT IN SUPPORT

OF REQUEST

‘IL WAYNE JEFFERS, TO PROCEED

eee err IN FORMA PAUPERIS

I, e ee Shieh am the petitioner in the

above en ec case. Nn Support of my motion to proceed without

being required to prepay fees or costs or give security therefor,

I state thet because of my poverty I am unable to pay the costs

of said proceeding or to give security therefor; that I believe

I am entitled to redress.

I declare that the responses which I have made below are true.

as you presently emp loyec? Yes ( ) Wo (*)

If the answer is yes, stete the amount of your salery

or waces per month, ane give the name and adéress of

your employer.

D. If the answer is "no," state the Gate of last empiloymert

and the amount of the salary and waces per month which

you receivec. /@7. 2

Have you received within the past twelve months any money from

any of the following sources?

@. Business, profession or form of self-employment? es ) No a

D. Rent paymerts, interest or dividenés? Yes { ) Wo ({ )

e. Pensions, annuities or life insurance payments? Yes ( ) No (4

d. Gifts or inheritances? res Wo (W

@. Any other sources? Yes («) Wo ( )

If the answer to any of the above is yes, describe each source

of money and state the amount received from each during the past

twelve months.

Do you own cash, or do you have money in a checking or sevings

account?

Yes g Wo ( (Include any funds in prison accounts.)

If the answer is yes, state the total valve of the items owned.

Do you own any rel ettate, stocks, bonds, notes, sutomobiles, or

other valuable property (excluding oréinary householé furnishings

and clothing)?

ves ) Wo ()

If the answer is yes, ¢escribe the property and state its

approximate value.

List the persons who are dependent upon you for support,

state your relationship to those persons, and indicate

how much you contribute to their support 4

I understand that a false statement or answer to any questions

in this Geclaration will subject me to penalties for perjury.

ia

r Cilhae

gnature

v

I declere under perelty of perjury that the foregoing is true

ant correct.

Sicneé this ct: éay of — 19

CERTIFICATE

eby certify that the petitioner herein

on account to his credit et the -

institution where he is

petitioner likewise has the following

securities to his credit accoréing to the records of said

institution:

uthor cer’o ns or.

3 ’

4 QUESTION PRESENTED

1. May a federal court independently determine whether a

No so - lee State's application of its “especially heinous ... or depraved"

aggravating circumstance to a capital defendant violates the

398 E t principles of Godfrey vy, Georgia, 446 U.S. 420

SUPREME COURT OF THE UNITED STATES Eighth Amendment p P

OCTOBER TERM, 1969 ~ (1980)?

JAMES G. RICKETTS, Director, Arizona Department

of Corrections, and DONALD WAWRZASZEK,

Superintendent of the Arizona State Prison,

Petitioners,

v.

JIMMIE WAYNE JEFFERS,

Respondent.

OW PETITION FOR WRIT OF CERTIORARI] TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ... =.

TABLE OF CONTENTS ae & 6 6 a Ss 6 O55

TABLE OF AUTHORITIES .. +++ © © © © # &

OPINION BELOW. ...+ ++ © © © © © © #© @

JURISDICTION . . 2. © es © © © © © we we ww

CONSTITUTIONAL PROVISIONS INVOLVED ...

REASONS FOR DENYING THE WRIT

The decision of the court below was a

straight forward application of

Godfrey vy. Georgia

CONCLUSION ..+ + « +

CERTIFICATE OF SERVICE .. ++ + © © © «© «&

ii

10

11

TABLE OF AUTHORITIES

, 865 F. 2d 1011

1016 (9th Cir, 1988) cert. pending

3,

Cartwright X. Maynard, 822 F.2d 1477, 1487-8 (10th Cir. 1987) . 4

Godfrey v. Georgia, 446 U.S. 420 (1982) .... 2-4, 7, 8, 9, 10

Jeffers v. Ricketts, 832 F.2d 476, 482 (9th Cir. 1987) 2, 3, 5, 8

Magwood X. Smith, 791 F.2d 1438 (llth Cir. 1986) ...

„ 486 U.S. ___, 108 S.Ct. 1853

100 L. Ed. 2d 372 (1988) ......5. 3, 4, 5, 7, 8,

’ U.S. _, 107 &.Ct. 1756

95 L.Ed.2d 262 (1987) * . * . . * * * * * * . * *

State v. Arias, 131 Ariz. 441, 641 P. 2d 1285 (1982) ..

State vy. Billhymer, 114 Ariz. 390, 561 P. 2d 311 (1977)

State vy. Blazak, 131 Ariz. 598, 643 P. 2d 694 (1982) ..

State v. Brookover, 124 Ariz. 36, 601 P. 2d 1322 (1979)

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

State v. Christensen, 129 Ariz. 32, 628 P. 2d 580 (1981)

State vy. Cookus, 115 Ariz. 99, 563 P. 2d 898 (1977)

State vy. Encinas, 132 Ariz. 493, 647 P. 2d 624 (1982)

State v. Fierro, 124 Ariz. 182, 603 P. 2d 74 (1979) N

State vy. Garcia, 133 Ariz. 522, 652 P. 2d 1045 (1982)

State vy. Graham, 135 Ariz. 209, 660 P. 2d 460 (1983) . .

, 135 Ariz. 42, 52-3

659 . 4 1, 11-12 (1983) .

State vy. Hensley, 142 Ariz. 598, 691 P. 24 689 (1984) .

State v. Jeffers, 135 Ariz. 404, 621 P. 2 1105 (1983) .

State vy. Lujan, 124 Ariz. 365, 604 P. 2 629 (1979) ..

State . Madsen, 125 Ariz. 342, 609 P. 2 1046 (1980) .

State vy. Poland, 144 Ariz. 388, 698 P. 2d 183 (1985) . .

State vy. Purcel), 117 Ariz. 305, 572 P. 2d 439 (1977) .

State vy. R.D. Smith, 138 Ariz. 79, 673 P. 2d 17 (1983) .

State X. Thomas, 133 Ariz. 533, 652 P. 2 1380 (1982) .

State vy, Watkins, 133 Ariz. 1, 648 P. 2d 116 (1982) ..

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

State vy. Wiley, 144 Ariz. 525, 698 P. 2 1244 (1985) . .

State v. Williams, 133 Ariz. 220, 650 P. 2 1202 (1982)

iii

a

oearnry+ ee veespvwss+eoeaenrt @

„ 820 F.2d 1450 (9th Cir. 1987)

cert granted, 108 S.Ct. 2815 (1988) ... 4

ARIZONA REVISED STATUTES

UNITED STATES STATUTES

28 U.S.C. §1254(1)

* . . . * * * . . . . * . * . * . * . 2

iv

cr

NO. 89 - _15°

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1989

JAMES G. RICKETTS, Director, Arizona Department

of Corrections, and DONALD WAWRZASZEK,

Superintendent of the Arizona State Prison,

Petitioners,

Vv.

JIMMIE WAYNE JEFFERS,

Respondent.

ef *

COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

Respondent, Jimmie Wayne Jeffers, respectfully requests that

this Court deny the Petition for Writ of Certiorari which seeks

review of the decision of the Ninth Circuit Court of Appeals

entered in this case on November 9, 1987.

OPINION BELOW

The opinion of the Ninth Circuit Court of Appeals is

reported at 832 F.2d 476 (1987). (See also, Petitioner's

Appendix A).

JURISDICTION

The Ninth Circuit Court of Appeals entered its judgment in

this case on November 9, 1987. Request for rehearing and

suggestion for a rehearing en banc was denied by order dated

April 14, 1989. On August 8, 1989, Respondent was granted to and

including August 30, 1989 to file his response to the Petition

for Writ of Certiorari. The statutory provision relied on by the

Petitioner to invoke jurisdiction is 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS

United States Constitution Amendment VIII:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual] punishments inflicted.

United States Constitution Amendment XIV: No

State shall ... deprive any person of life,

— or property, without due process of

REASONS FOR DENYING WRIT

I. THE DECISION OF THE COURT BELOW WAS A STRA FOR

APPLICATION OF GODFREY V. GEORGIA. aa *

Nothing about the Court of Appeals decision below calls for

review on certiorari by this Court.

The focus of the panel's decision was the uniquely broad

language of the Arizona statutory aggravating circumstance

“especially heinous ... or depraved.”' Jeffers v. Ricketts, 832

. 2d 476, 482 (9th Cir. 1987). That was the only aggravating

factor found in this case. The panel's decision did not involve

the aggravating circumstance “cruelty.” The Arizona Supreme

Court explicitly held that the circumstances of the case did not

establish “cruelty.” State v. Jeffers, 135 Ariz. 404, 429, 621

p. 2d 1105 (1863). The panel examined previous Arizona decisions

in light of Godfrey v. Georgia, 446 U.S. 420 (1980) and concluded

that the “especially heinous ... or depraved”’ aggravating

circumstance was not constitutionally applied to Respondent

‘See, Arizona Rev.Stat. 13-703(F) (6)

„. Aggravating circumstances to be considered

shall be the following: ... 6. The defendant

committed the offense in an especially heinous,

cruel or depraved manner."

2

Since the Arizona Supreme Court held that the kill was not

servel®, those Arizona cases concerned with the — —. of

cruelty” - such as Adamson v. Ricketts, 865 F.2d 1011, 1016 (9th

Cir. 1988) cert. pending. - do not control the disposition of this

case. Rather, the instant case is limited to that subcategory of

cases involving the more subjective and amorphous statutory terms

— or d praved." Jeffers v. Ricketts, supra, 832 F.2d at

3The Arizona statute is written in the disjunctive. This

gives rise to an additional constitutional —— because

disjunctive statute may prevent a properly narrow construction.

, 446 U.S. at 454 (White, J. dissenting)

(aggravating circumstance in disjunctive “would arguably be

assailable on constitutional grounds").

2

Jeffers. 632 F.2d at 483-4.

The Godfrey analysis applied by the panel has since been

approved and reaffirmed by this Court in Maynard vy. Cartwright.

466 U.S. __, 108 &.Ct. 1853, 100 L. E. 2d 372 (1988). The

analysis of the panel establishes nothing in the way of federal

law that Maynard did not establish only over one year ago. 18

100 L.Ed.24 at 381. The analysis of the panel is that kind of

analysis of state law this Court usually leaves to the respective

courts of appeals. 1. 100 L.Ed.2d at 379-380. Consequently,

the analysis and holding of the panel in this case presents no

eccasion for this Court's review, the panel did not misapply

Godfrey, and the State’s Petition for Certiorari should be

denied.

Petitioner claims that this case presents the question of

the appropriate federal standard courts should apply in reviewing

state court findings of aggravating circumstances and that the

decision of the panel did not properly defer to the state court's

assessment of the facts (Petition, pp. 10-11). The pane)

properly deferred to and applied the historical facts as found by

the Arizona Supreme Court. Compare, Jeffers vy. Ricketts, 832

r. 2d at 478, 484-5, with. State v. Jeffers, 135 Ariz. at 412,

429-30. As to the appropriate standard of review applicable to

aggravating circumstances, the panel was aware of and applied the

standard from McCleskey vy. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95

L.£4.24 262 (1987) that a constitutional violation only srises

when the “capital punishment system operates in an arbitrary and

capricious manner ... ." Jeffers, 832 F.2d at 485-6. In this

case, the panel concluded that the death penalty was imposed

against Jeffers in an “arbitrary and capricious manner." 632

. 2d at 486. Thus, Petitioner is mistaken when it claims that

this case raises a significant question concerning the

appropriate standard to be appiied in the federal courts and that

the panel did not defer to the state court's findings of fact.

Petitioner also claims there is a conflict within the

Circuits over the appropriate standard for reviewing aggravating

circumstances. Petitioner cites Magwood vy. Smith. 791 F.2d 1438

(llth Cir. 1986) to illustrate the seeming conflict that exists

within the Circuits. Examination reveals that no such conflict

exists. In Magwood, supra, the Court of Appeals affirmed the

District Court's granting of the defendant's writ of habeas

corpus on the ground that the state court erroneously rejected

two mitigating circumstances during sentencing. 791 F.2d «*

1440. In upholding the District Court's decision, the Court of

Appeals held that it would not re-evaluate the weight given to «4

particular aggravating or mitigating circumstance, but that it

would re-evaluate the existence of a particular aggravating or

mitigating circumstance. 791 F.2d at 1449. Moreover, unlike the

instant case, the Magwood court was not faced with a Godfrey yv.

Georgia/Maynard v. Carteright attack on a particular aggravating

circumstance and the court said nothing about the standard of

review applicable to such an attack. jg. 791 F.2d at 1447-50.

Consequentiy, the panel's decision in the instant case does not

conflict with the Eleventh Circuit's decision in Magwoodg and

Petitioner's claim is unpersuasive.

To illustrate that a seeming conflict exists within the

Ninth Circuit, Petitioner cites Woratzeck vy. Ricketts. 820 F.2¢

1450 (9th Cir. 1987) cert granted, 108 S.Ct. 2615 (1988). The

Gecision in Woratzeck has been vacated by the Court of Appeals

and remanded to the District Court following an order from this

Court "for further consideration in light of Maynard vy.

Cartwright ... ." See Woratzeck vy. Ricketts, 859 F.2¢ 1559 (9th

Cir. 1988). The panel in the instant case applied a Maynard type

analysis to the circumstances of the case and, consequently,

there is no conflict within the Ninth Circuit on this point.

Petitioner next complains that the panel decision

incorrectly applied Arizona law when it surveyed prior Arizona

Gecisions which defined and applied the “especially heinous or

Gepraved™ aggravating circumstance. The analysis employed by the

panel was similar to that employed by the Tenth Circuit in

Cartwright v. Maynard, 822 F.2d 1477, 1487-8 (10th Cir. 1987) and

~

approved by this Court in Maynard vy. Cartwright, supra, 100

L. Ed zd at 379. Consequently, Petitioner's complaint about the

panel's analysis is not well taken.

Petitioner also complains that certain differences between

other Arizona cases and Respondent's case somehow establish that

Respondent's conduct was especially hei:.ous or depraved. There

are two defects with Petitioner's complaint. First, the

“differences” mentioned by Petitioner in no way meaningfully

distinguish Respondent's case from those cases where the

aggravating circumstance in question was not found. Second,

Petitioner has selected only a small number of cases to

illustrate its complaint; of equal significance are numerous

cases Petitioner omits from its examination.

The killings mentioned by Petitioner which were pot found

“heinous” or “depraved” well illustrate the unpredictable

application of this statute:

In State vy. B.D. Smith. 138 Ariz. 673 P. 2d 17 (1983),

the victi= was repeatedly raped by Smith prior to her murder.

She was then choked, stabbed, her throat cut, and her head

crushed with a rock. jg. 673 F. 2d at 22. Smith requested

playing the song “We Are The Champions." 673 P. 2d at 23-4.

Petitioner argues the evidence of Smith's heinous or depraved

attitude was “equivocal” because the source was an accomplice.

Yet, in Respondent's case, the source of evidence against him was

the testimony of Doris Vanderveer, who testified under a grant of

immunity. Jeffers, 832 F.2d at 479, 484, fn. 4. That the source

of evidence against a capital defendant comes from an accomplice

rather than an immunized witness has nothing to do with the

Gefinition of “heinous or depraved."

In State v. Graham, 135 Ariz. 209, 660 F. 2d 460 (1983), the

Gefendant obtained a rifle and fired two shots at the victim as

he answered his front door. In describing the killing to his

friends, Graham “smiled as he told them the victim ‘squealed like

® rabbit’ when he was shot." 660 P.2d at 463. Petitioner points

to the fact that the defendant in aba presented mitigating

evidence as to his mental condition; but that makes no difference

with respect to the application of the “heinous or depraved"

aggravating circumstance.

In State v. Brookover, 124 Ariz. 38, 601 F. 2d 1322 (1979),

the victim was shot in the back with @ .38 caliber revolver. The

victim fell to the floor and complained it hurts." The

Gefendant then said “don't worry, buddy, it will be okay” and

shot the victim again in the back. The victim's body was taken

to a parking lot at the airport and abandoned. 124 Ariz. at 40.

Petitioner emphasizes that the defendant in Brookover shot the

victim twice in relatively quick succession; but that does not

meaningfully distinguish that case from the instant case where

Cheney was rendered unconscious with an overdose of drugs and did

not suffer. See Jeffers, 135 Ariz. at 429.

In State v. Cejia, 126 Ariz. 35, 612 F. 2d 491 (1980), the

defendant murdered a husband and wife during a drug robbery.

Prior to the killing, the defendant bragged that he was going to

“rub out a dude” and “rip him off." 612 F. 2d at 495. The

defendant shot the wife seven times, at least four times in the

head and twice in the chest. The defendant shot the husband four

times, twice at close range. The husband was kicked in the face

after losing consciousness. 612 Fd at 493. How Respondent's

conduct showed an especially heinous or depraved determination to

kill, but Ceja's did not, is impossible to fathon.

In State v. Watson, 120 Ariz. 441, 586 F. 2d 1253 (1978),

the defendant and codefendant entered the victim's home in order

to commit «a burglary. When the defendant went upstairs, the

victim obtained a gun and shot at the codefendant. The defendant

came down stairs and shot the victim in the back four times, the

last time while the victim was lying face down on the floor.

Petitioner points out that defendant Watson sought out and shot '

the victim during « residential burglary in order to aid his

codefendant's escape; but that does nothing to establish the

definition of the “heinous or depraved" aggravating circumstance

or

in the instant case.

In State vy. Poland, 144 Ariz. 388, 698 P.24 183 (1985), the

defendants disguised themselves as police officers and robbed a

Purolator van of pore than $300,000.00. Two Purolator guards

were placed in canvas bags containing rocks and dumped in Lake

Mead. One guard died by drowning and the other by either

drowning or a heart attack. The bodies were in the water at

least two weeks and found three-four weeks later. 144 Ariz. at

393. That the state of mind of the defendants in Poland could

not be established because no witness survived to show how the

victims were killed and dumped into the lake is irrelevant to the

Gefinition of the aggravating circumstance applied in the instant

case.

To determine whether the Arizona Supreme Court has

constitutionally applied the “especially heinous or depraved"

aggravating circumstance, the list of cases examined could - but

need not - stop there. A broader examination of Arizona case law

reveals that “the list of considerations ... the Arizona Supreme

Court has been willing to use to support one of the three terms

that comprise its especially heinous eggrevating factor is

extremely broad.” Rosen, The Especially Heinous Aggravating

Circumstance in Capital Cases - the Standardless Standard, 64

* C. L. Rev. 941, 981 (1986). “Whenever anything deut « surder

has proved offensive to the court, ... it has approved (this

factor)." Rosen, 64 M. c. L. Rev. at 981 (emphasis in original).

For example, in a number of cases the aggravating circumstance

"especially heinous or depraved" was either not found or such

finding was reversed, even though the cases involved “apparent

relishing" of the surder, gratuitous violence,’ and/or

‘state . Madsen, 125 Ariz. 342, 609 P.24 1046 (1980)

(defendant iced crying to fake grief and bragged that it was

"easy" to kill someone for ence soney)) State-x.Eillians. *>?

Ariz. 220, 650 P.24 1202 (1982) (defendant wrote tch the

dirt near the victim's body); „ 133 Ariz. 1, 648

F. d 116 (1962) (when police arr ° told them the

victim “must have been very sick, he's throwing up blood); state

, 142 Ariz. 598, 691 F 2d 689 (1984) (defendant bragged

that he "left no witnesses" after killing two individuals).

7

“needless” mutilation.* Similarly, the “mere existence of the

„ helplessness of the victim, in isolation, does not always

lead to a holding that the crime is heinous” gee State vy.

Gretzler, 135 Ariz. 42, 52-3, 659 P. 2d 1, 11-12 (1983), but in

several cases it has.’ A fuller review of this broader list of

factors and cases reveals that Petitioner has not fully

confronted the inconsistent application of the “especially

heinous or depraved" eggravating circumstance. The panel's

analysis - consistent with both Godfrey and Maynard - establishes

that fect. But its holding is properly narrow: it only

concludes that the aggravating circumstance in question has been

unconstitutionally applied to Respondent in this case. Jeffers.

832 F.2¢ at 485-6.

In sum, Petitioner's claim that the panel misapplied Arizona

case law in unpersuasive because, as the panel pointed out, there

is no meaningful way to distinguish Jeffer's case in which the

eggravating circumstance of especially heinous or depraved was

found from those cases in which it was not. 632 F.2d at 486.

That Petitioner can conjure up facts to distinguish the instant

“state vy. Christensen, 129 Ariz. 32, 628 P.24 $80 (1981)

(victim strangled, beaten, lacerated “over the entire body", and

had « ligature tied around her neck); „ 124 Ariz.

182, 603 F. 2d 74 (1979) (victim shot five t * ,

115 Ariz. 99, 563 F. 2d 698 (1977) (victi= beaten with „ then

shot six times); „ 114 Ariz. 390, S61 F. 20 311

(1977) (nude, v y stabbed) ; ,

132 Ariz. 493, 647 F. 2d 624 (1982) (victim beaten, run over with

car, stabbed 30 Since): Siate-x.cnamea. 333 Ariz. 533, 652 F 20

1380 (1962) (victis tw cut).

„ 133 Ariz. 220, 650 P.24 1202 (1982)

(vict @ stab wound in the temple, had lecerations on

her throat and forehead) ; „ 129 Ariz

’ Supre .

22 (victim strangled and besten) State -x._fureei. 117 Ariz. 305,

572 P. ad 439 (1977) (victim beaten with t of shotgun, then

repeatedly shot in chest).

"cases involving apparent “senselessness" or “helplessness”

where no finding of heinousness include: „ 144 Ariz.

525, 698 P.2¢ 1244 (1985) (70 year old burglary victi= bound and

beaten, died of smoke inhalation); „ 131 Ariz. Soe,

643 P.24 694 (1962) (murder of innocent to robbery);

„ 131 Ariz. 441, 641 P.24 1285 (1982) (#1 ole

7 „ and strangled during burglary); state v.

„ 124 Ariz. 365, 604 P.2¢ 629 (1979) (unconscious

victim stabbed to death); State v. Garcig, 133 Ariz. 522, 652 P.2¢

1045 (1962) (victim repeatedly beaten over the head with « pipe

dur ing robbery).

case from other cases" does not undermine the panel's analysis.

The conclusion of the panel - supported by Godfrey enéd Maynard ~

is that the aggravating circumstance of especially heinous or

depraved was not constitutionally applied to Respondent under the

circumstances of his case. This decision is not in need of

review by this Court.

Suprepme

éepreved" revating circumstance. Thus, the istinctions ere not

— te — the existence of the saggrevating

circumstance in questions.

CONCLUSION

The decision below was « correct sepplication of Godfrey vy.

Georgia (#5 approved in Maynard vy. Cartwright), the decision does

not conflict with decisions in the Ninth Circuit or within other

circuits, and the decision correctly ecknowledged and evaluated

State lew. Therefore, the Petition for Writ of Certiorari should

be denied.

Respectfully Subsitted

120

—— ———

— —

STATE OF ARIZONA )

) ss.

County of Pima )

DONALD S. KLEIN, a member of the bar of this Court, being

duly sworn upon oath, deposes and says: that he served three (3)

copies of the Response to Petition for Writ upon

Gerald R. Grant

Assistant Attorney General

Department of Law

1275 W. Wash

Phoenix, AZ 85007

by depositing the same in the United State's mail, with first

class postage prepaid.

DATED this 2 ~* aay of August 1989.

/ pres My .

.

DONALD S. KLEIN

Attorney for Respondent

SUBSCRIBED AND SWORN TO BEFORE me this. 4c% day of August,

1989, by DONALD S. KLEIN. Py —

. PUBLIC 3

My Commission Expires:

My Com <20" £ --2s 0: 7, 1822

12