Respondents Brief — Lewis v. Jeffers

"BEST AVAILABLE COPY

COUNTERSTATEMENT OF QUESTION PRESENTED:

Whether the Court cf Appeals for the

Ninth Circuit correctly heid that

Arizona’s construction of its

"especially heinous ... or depraved"

aggravating circumstance in this case

violated the rule of Godfrey vy. Georgia

and Maynard vy. Cartwright.

@ fi «

COUNTERSTATEMENT OF THE QUESTION

PRESENTED .....sss««s ecececceseseeses i

TABLE OF CONTENTS .. 1... cccccccccuuces ii

TABLE OF AUTHORITIES ......ccscccuucs iv

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .......ccseuuuues 1

STATEMENT OF THE CASE ......ssceseues 1

A POGCS cccccccccccecseesess 1

B. Trial Court Proceedings . 9

c. Proceeding in the Ari-

zona Supreme Court ...... 13

D Federal Habeas Corpus

Proceedings .......sssuus 1?

SUMMARY OF ARGUMENT ... 2... cccccuuues 23

RIMES cc ccccccccececeseeeeseeeeese 29

I. INTRODUCTION 2... ccccccceues 29

II. MAYNARD AND DICTATE

THE COURT OF APPEALS’

CONCLUSION THAT THE ARIZONA

“ESPECIALLY HEINOUS ... OR

DEPRAVED" CIRCUMSTANCE FAILED

TO SERVE ITS CONSTITUTIONAL

NARROWING FUNCTION ........55. 38

IIl.

- iii -

A. The Arizona Supreme

Court’s Construction of

the "Especially Heinous

+++ Or Depraved" Circum-

stance Runs Afoul of the

Eighth Amendment Rule of

MAYMNAEG ..ccccccccecesees 38

B. The Arizona Courts’

Application of the

"Heinous ... or De-

praved" Aggravating

Circumstance in Mr.

Jeffers’ Case Runs Afoul

of the Eighth Amendment

Rule of Godfrey ......... 74

ARIZONA’S EFFORTS TO AVOID

THE CLEAR DICTATES OF MAYNARD

AND GODFREY BY CREATING A

SPURIOUS “STANDARD OF REVIEW"

ISSUE ARE UNAVAILING ......... 91

CONCLUSION se ereeeneneneneneneneneneneneneneneeneneeee#se 107

APPENDIX A: Arizona Revised

Statute § 13-703 ........ A-1

APPENDIX B: Arizona Trial and

Supreme Court Treatment

of the (F) (6)

Aggravating Circunm-

stance, 1974-89 .......4.. B-1

- iv -

TABLE OF AUTHORITIES

Adamson v. Ricketts, $65 F.2d

1011 (9th Cir. 1988),

Arizona v. Rumsey, 467 U.S. 203

(1984) *enrioeneeneeeeee#e#ee#rfee#s#free#e#eete##e###* *#

Barclay v. Florida, 463 U.S.

939 (1983) *eeeneteneere ee ne © fe ff © *-

Cabana v. Builock, 474 U.S. 376

(1986) *enreoenrwere e#eeee#efe#nfee#e##fe#e##e###e#e#e

California v. Brown, 479 U.S.

538 (1987) ne frees © # &#© * se ffteee

California v. Ramos, 463 U.S.

992 (1983) *enrieneneeenrtneeeee#eeee#e#e#e«

Cartwright v. Maynard, 822 F.2d

1477 (10th Cir. 1987), aff'd,

486 U.S. 356 (1988) ..nesaeees

Chaney v. Lewis, 801 F.2d 1191

(9th Cir. 1986), cert.

denied, 481 U.S. 1023

(1987) re fe feeneneneneeneeeeee re fee

Chevron U.S.A. v. Natural

Resources Defense Council,

467 U.S. 837 (1985) ..ncencces

passim

31

31, 32,

37, 96

103

32

77

passim

20

43

Cuyler v. Sullivan, 446 U.S.

335 (1980) *enrneneteeneneneteneeneeeeee

Drope v. Missouri, 420 U.S. 162

(1975) *eeeeneeeneneeneeneneeneeeeeee

Eddings v. State, 616 P.2d

1159 (Okla. Crim. App.

1980), rev’d on other

grounds, 455 U.S. 104

(1982) eee eee eee eeeeeeeeeeee

Ford v. Strickland, 696 F.2d

804 (llth Cir.), cert.

denied, 464 U.S. 865 (1983)

Francis v. Franklin, 471 U.S.

307 (1985) *enrewnenenetee eeee eee#s#ee#ese#e*«

Furman v. Georgia, 408 U.S.

238 (1972) se fe fteeeneeneneneeeneeeesse

Gardner v. Florida, 430 U.S.

349 (1978) *enereneneeeene eee e#eeeee#se

Godfrey v. Georgia, 446 U.S.

420 (1980) wccccecssesccsseces

Gregg v. Georgia, 428 U.S. 153

(1976) ere eeweeneeneeneneenenee#eeee#e

Haynes v. Washington, 373 U.S.

503 (1963) ef fe ff se ereeeeeeeeee

Jackson v. Denno, 378 U.S. 368

(1964) wccccccccsecs coeecceces 7

104

104

50

96

104

passim

32

passim

31, 33,

35, 42,

71, 97

99

100

-vi-

Jackson v. Virgina, 443 U.S.

307 (1979) *enreneeneeneeneeeneeeneee#e

Jeffers v. Ricketts, 832 F.2d

476 (9th Cir. 1987), cert.

granted, 110 S. Ct. 232

C19B9) cccccccccccccccccscceces

Jeffers v. Ricketts, 627 F.

Supp. 1344, °

° , 832 F.2d

476 (9th Cir. 1987), cert.

granted, 110 S. Ct. 232

i ic enbegneenadeseesnse

Lockett v. Ohio, 438 U.S. 586

(1978) *ereeneneeeeeneeeeeeeeees###e#e#e«

Lowenfield v. Phelps, 484 U.S.

213, 108 S. Ct. 546 (1988)

Magwood v. Smith, 791 F.2d

1438 (llth Cir. 1986),

, 110 S. Ct.

SDL (19B9) accccesecsesccceses

Maynard v. Cartwright, 486 U.S.

356, 108 S. Ct. 1853 (1988)

McCleskey v. Kemp, 481 U.S.

BVO CAOSTD cocccececececeseece

Miller v. Fenton, 474 U.S. 104

C29GS) ceccccccs TYETELILITTTT

96

passim

32, 44,

97, 105

100, 101

- vii -

Mills v. Maryland, 486 U.S.

367, 108 S. Ct. 1860 (1988) ..

Mincey v. Arizona, 437 U.S. 385

(1978) *eereeneneeneneeneeeneeneneeeeees

Newlon v. Armontrout, 885 F.2d

1328 (8th Cir. 1989) .....46-.

Norris v. Alabama, 326 U.S. 271

(1945) sr eeeeweeesee eeeeee eee

Penry v. Lynaugh, 109 S. Ct.

2934 (1989) nnn necnneceencnces

Proffitt v. Florida, 428 U.S.

242 (1976) ne ee feeweeneeneee ee eee © «@

Proffitt v. Wainwright, 685

F.2d 1227 (llth Cir. 1982),

cert. denied, 464 U.S. 1002

(1983) ne feewee ee#eee#ee #teeee#esess#s#** * «

Pulley v. Harris, 465 U.S. 37

(1984) eft eee eeeeeneeeeees *+ ** *# * «

Rogers v. Richmond, 365 U.S.

534 (1961) ei efeeeeeeese eee ee @

Smith v. Phillips, 455 U.S. 209

CA2GSSZ) ceocccceseceeseseseceses

State v. Arnett, 125 Ariz. 201,

608 P.2d 778 (1980) ...ceeeees

State v. Arnett, 119 Ariz. 38,

579 P.2d 542 (1978) ...ceeeecs

37,

103

100

44

104

103

45,

47

56,

106

30,

72

101

43

60

89

- viii -

State v. Beaty, 158 Ariz. 232,

762 P.2d 519 (1988), cert.

denied, 109 S.Ct. 3200

(1989) ccccccccccccccscscscsesss 44, 48,

State v. Blazak, 131 Ariz. 598,

643 P.2d 694, cert. denied,

459 U.S. 882 (1982) .......... 60, 89

State v. Brookover, 124 Ariz.

38, 601 P.2d 1322 (1979) ..... S54, 62,

State v. Carr, 154 Ariz. 468,

743 P.2d 1386 (1987) ....4+++- 60, 86,

89

State v. Carriger, 143 Ariz.

142, 692 P.2d 991 (1984),

cert. denied, 471 U.S. 1111

(1985) ee ewneeweeeeeeeeneeeeteee ff *§ *© © © 48, 67

State v. Ceja, 126 Ariz. 35,

612 P.2d 491 (1980) ...cnnaees 49, 65,

88

State v. Ceja, 115 Ariz. 413,

565 P.2d 1274, cert. denied,

434 U.S. 975 (1977) waneeeeues 49, 88

State v. Clark, 126 Ariz. 428,

616 P.2d 888, cert. denied,

449 U.S. 1067 (1980) .....46. 84

State v. Correll, 148 Ariz.

468, 715 P.2d 721 (1986) ..... 49, 50,

64, 67

State v. Cruz-Mata, 138 Ariz.

370, 674 P.2d 1368 (1983) .... 62

- ix -

State v. Dixon, 283 So. 2d 1

(1973), cert. denied, 416

U.S. 943 (1974) ..cceeeeeeeees

State v. Fisher, 141 Ariz. 227,

686 P.2d 750, cert. denied,

469 U.S. 1066 (1984) .........

State v. Fulminante, 161 Ariz.

237, 778 P.2d 602 (1988),

petition for cert. filed .....

State v. Gerlaugh, 144 Ariz.

449, 698 P.2d 694 (1985) .....

State v. Gillies, 142 Ariz.

564, 691 P.2d 655 (1984),

cert. denied, 470 U.S. 1059

(1985S) wccccccesessseseseseses

State v. Gillies, 135 Ariz.

500, 662 P.2d 1007 (1983) ....

State v. Girdler, 138 Ariz.

482, 675 P.2d 1301 (1983),

cert. denied, 467 U.S. 1244

(1984) rer reeeeeeneeeeeteeeteeteess *© * © ©

State v. Graham, 135 Ariz. 209,

660 P.2d 460 (1983) .....see6.

State v. Gretzler, 135 Ariz.

42, 659 P.2d 1, cert. denied,

461 U.S. 971 (1983) ..........

State v. Harding, 141 Ariz.

492, 687 P.2d 1247 (1984)

45, 47

48, 64,

69

84, 88

69, 84

64, 65

State v. Harding, 137 Ariz.

278, 670 P.2d 383 (1983),

cert. denied, 465° U.S.

1013 (1984) e*eeeeeeeseeeeee3#e#eeeee

State v. Hensley, 142 Ariz.

598, 691 P.2d 689 (1984) .....

State v. James, 141 Ariz. 141,

685 P.2d 1293, cert. denied,

469 U.S. 990 (1984) ...ceeeees

State v. Jeffers, 135 Ariz.

404, 661 P.2d 1105, cert.

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

State v. Johnson, 147 Ariz.

395, 710 P.2d 1050 (1985) ....

State v. Kinkade, 147 Ariz.

250, 709 P.2d 884 (1985) .....

State v. Knapp, 114 Ariz. 531,

562 P.2d 704 (1977), cert.

denied, 435 U.S. 908

(1978) *eeeeeeneenereneeneeeeeee ee

State v. LaGrand, 153 Ariz. 21,

734 P.2d 563, cert. denied,

484 U.S. 872 (1987) e*eeeeneeee8e

State v. Lamb, 142 Ariz. 463,

690 P.2d 764 (1984) eeeeeeeneeee

State v. Lambright, 138 Ariz.

63, 673 P.2d 1 (1983), cert.

denied, 469 U.S. 892 (1984) ..

50

67

48, 61,

55, 66

13, 49,

50, 54

49, 62,

63, 68

86

46, 69,

77

57, 88

87

61, 84

- xi-

State v. Libberton, 141 Ariz.

132, 685 P.2d 1284 (1984) ....

State v. Lujan, 124 Ariz. 365,

604 P.2d 629 (1979) wns eeeeees

State v. Madsen, 125 Ariz. 346,

609 P.2d 1046, cert. denied,

665 Gl, GEO GED ce cseeces

State v. Martinez-Villareal,

145 Ariz. 441, 702 P.2d 670,

cert. denied, 474 U.S. 975

(1985) ee eeeseeeees#ee#ee#ee#efnfeee#e#e#5e#e##se##e#*#

State v. McCall, 139 Ariz. 147,

677 P.2d 920 (1983), cert.

denied, 467 U.S. 1220 (1984)

State v. Montes, 136 Ariz. 491,

667 P.2da 191 (1983) e*eeeneee#eeesetees

State v. Moorman, 154 Ariz.

578, 744 P.2d 679 (1987) .....

State v. Ortiz, 131 Ariz. 195,

639 P.2d 1020 (1981), cert.

denied, 456 U.S. 984 (1982) ..

State v. Poland, 144 Ariz. 388,

698 P.2d 183 (1985), aff'd,

476 U.S. 147 (1986) ......4.4..

State v. Richmond, 136 Ariz.

312, 666 P.2d 57, cert.

denied, 464 U.S. 986 (1983)

44

49, 63

48, 62,

69, 86

48, 61,

68

57, 64,

88

62

55, 68

50, 65

54, 62

44, 50,

60, 63,

69, 89

- xii -

State v. Rockwell, 161 Ariz. 5,

775 P.2d 1069 (1989) ....2e6--

State v. Roscoe, 145 Ariz. 212,

700 P.2d 1312, cert. denied,

471 U.S. 1094 (1985) .........

State v. Rossi, 146 Ariz. 359,

768 B.B8 SPR GEOEED cdccccvce:

State v. Schad, 129 Ariz. 557,

633 P.2d 366 (1981), cert.

denied, 455 U.S. 983 (1982) ..

State v. B. Smith, 146 Ariz.

491, 707 P.2d 289 (1985) .....

State v. R.D. Smith, 138 Ariz.

79, 673 P.2d 17 1983), cert.

denied, 465 U.S. 1074 (1984) .

State v. R.L. Smith, 141 Ariz.

510, 687 P.2d 1265 (1984) ....

State v. Steelman, 126 Ariz.

19, 612 P.2d 475, cert.

denied, 449 U.S. 913 (1980) ..

State v. Summerlin, 138 Ariz.

. 426, 675 P.2d 686 (1983) eeeeve

State v. Ricky Tison, 129 Ariz.

526, 633 P.2d 335 (1981),

cert. denied, 459 U.S. 882

TEOUED cccececoceseseseoseeses

60, 87

65, 68

84

68

48, 49,

54, 62,

63, 69

60, 61,

67, 89

61, 63,

68, 87

48

~ xiii -

State v. Vaughn, 147 Ariz. 28,

708 P.2d 453 (1985) ..eeeeeees 86

State v. Vickers, 159 Ariz.

532, 768 P.2d 1177 (1989) .... 54

State v. Vickers, 129 Ariz.

506, 633 P.2d 315 (1981) ..... 48, 84

State v. Villafuerte, 142 Ariz.

323, 690 P.2d 42 (1984),

cert. denied, 469 U.S. 1230

(1985) e*eeoeeeene4ee#*eeeeneteeeeeeeee#ee 63, 65

State v. Wallace, 160 Ariz.

424, 773 P.2d 983 (1989),

eecce 49, 50,

54, 68

State v. Wallace, 151 Ariz.

362, 728 P.2d 232 (1986),

cert. denied, 483 U.S. 1011

(1987) e*eeeeeeseeee#seee#e7#*ee*en+eoe*e#eee#e?es#ts?#* 44, 59,

66

State v. Watson, 120 Ariz. 441,

586 P.2d 1253 (1978),

, 440 U.S. 924

(1979) *e*eeeeeeseeenseeense@#e#enseeeneneeeee#e#see## 10, 45,

60, 89

State v. Williams, 1987 W.L.

878 (Ariz. Oct. 8, 1987) ..... 55

State v. Woratzeck, 134 Ariz.

452, 657 P.2d 865 (1983) ..... 50

State v. Zaragoza, 135 Ariz. Other Authorities

63, 659 P.2d 22, cert.

— denied, 462 U.S. 1124 Rosen, The “Especially Heinous"

TEDEEE cécccecocosccocosseoese Gy Gy Aggravating Circumstance in

54, 65, Capital Cases, 64 N.C.L. Rev.

66, 67, B42 (2966) ccccccccccccccccces 70

68 R. Stern, E. Gressman & S.

Shapiro, Supreme Court

Stein v. New York, 346 U.S. 15 Practice (6th ed. 1986) ...... 42, 43

(1953) wccccccseseseseeeseeess 100

Teague v. Lane, 109 S. Ct.

1060 (1989) wuceceseeeeeeevees 66

Tison v. Arizona, 481 U.S. 137

BOOP) cocccccccecesosoosoeces 103

United States v. New York

Telephone Co., 434 U.S.

159 (1977) e*enereeeeneenseneeeneeeneeee 43, 93

Washington v. Yakima Indian

Nation, 439 U.S. 463 (1978) ..

Zant v. Stephens, 462 U.S. 862

(1983) e*enereeeneeneteeeeeneeneeeeeee passim

Statutes

Ariz. Rev. Stat. § 13-703

(1989) e*eeeeeeeeeeeeeeeeeeeeee 1,

ll,

CONSTITUTIONAL AND STATUTORY

- PROVISIONS INVOLVED

In addition to the constitutional

provisions cited in Petitioner’s Brief,

this case involves Arizona Revised

Statute § 13-703, which is set forth in

Appendix A to this Brief.

STATEMENT OF THE CASE

A. Facts

In May 1973, the defendant Jimmie Wayne

Jeffers and the victim Penelope Cheney

met in a heroin rehabilitation program in

Tucson, Arizona and began dating. fT. 15:

156-59.1 Ms. Cheney was addicted to

heroin then and almost continuously

until her death five and one-half years

later; so was Mr. Jeffers until his

subsequent arrest. T. 10:94-95, 14:17,

let * refers to the transcript of the guilt-

innocence trial, followed by the volume and page

numbers cited. "T." preceded by a date refers to

transcripts of proceedings other than the guilt-

innocence trial, which are identified by date.

15:10-12, 15:154-55.

In October 1975, Ms. Cheney moved in

with Mr. Jeffers, and the two lived

together off and on until they were

arrested in May 1976 for possession of

narcotics and stolen property. T.

15:159. During their residence together,

Mr. Jeffers financed their substantial

drug habits, and the two conducted a

stormy relationship characterized by

frequent arguments and brief separations.

T. 10:77-83, 10:91, 15:17-18, 15:28,

15:104, 15:173-80; Apr. 14, 1978 T. so.

After their arrest, Mr. Jeffers,

remaining incarcerated himself, posted

bond for Ms. Cheney, paid for his

attorney to represent her in the case,

and continued supporting her financially.

14:135-45, 15:188-89. During the late

spring and summer of 1976, Ms. Cheney

dropped out of the drug rehabilitation

———

program in which Mr. Jeffers had

persuaded her to enroll, used the rent

money Mr. Jeffers had provided her to buy

drugs, moved in first with one and then

with another male friend of Mr. Jeffers,

stopped visiting him in jail and began

visiting another inmate in the same cell

block, and provided information to the

police -- about which their joint

attorney informed Mr. Jeffers --

concerning Mr. Jeffers’ heroin supplier

and other associates. T1T.6:118, 10:57-58,

10:70-71, 10:81-82, 11:137, 15:16-17,

15:85-86, 15:189-94, 16:51-63.

Mr. Jeffers was released from jail on

bond on October 8, 1976. On October 15,

he met Ms. Cheney and proposed that they

again live together. T. 16:75-78. Ms.

Cheney informed Mr. Jeffers that she had

become a prostitute to support her drug

habit and had moved in with the man with

whom she was sharing the proceeds of her

work. Ms. Cheney then demanded money and

drugs in return for sexual relations

with Mr. Jeffers. T. 5:100-01, 10:73-75,

14:24, 16:75-87.

A few days later, Mr. Jeffers invited

Ms. Cheney to the motel room he shared

with Doris Van Der Veer, offering Ms.

Cheney heroin and proposing that she give

up prostitution and come back to live

with him.2 T. 5:102, 16:96-98. On

October 21, 1976, Ms. Cheney telephoned

in the morning to say that she was on her

way over. Ms. Van Der Veer subsequently

found Mr. Jeffers "showered, shaved and

2mr. Jeffers met Ms. Van Der Veer several hours

after learning that Ms. Cheney had become a

prostitute. Ms. Van Der Veer spent that night

and the next two months with Mr. Jeffers. T.

6:96-100. A convicted drug dealer, Ms. Van Der

Veer had been involved in smuggling cocaine from

Mexico in the preceding months and was dealing

marijuana in Tucson. T. 5:82, 6:79-80, 6:218-19,

19:53-54; Mar. 6, 1978 T. 6-8.

a ee

changed" and visibly "happy and excited"

at the prospect of Ms. Cheney’s visit. |

At Mr. Jeffers’ request, Ms. Van Der Veer

agreed to leave the room when Ms. Cheney

arrived so that Mr. Jeffers could "talk

to [Ms. Cheney] about going back with

her." T. 5:106, 6:138. Ms. Van Der Veer

was gone two and one-half hours. T.

5:113-17. During this time, she once saw

Mr. Jeffers and Ms. Cheney leave the room

for a moment to buy cigarettes; they were

"laughing and smiling and holding hands."

T. 52116, 6:143.

When Ms. Van Der Veer returned to the

motel room, she witnessed Ms. Cheney’s

death. What occurred, as the trial judge

in his sentencing order based upon Ms.

Van Der Veer’s testimony, was this:2

3These events “were not reported [to the police]

until three months later despite Van Der Veer

being an eyewitness" -- a three-month period

during which Ms. Van Der Veer was in frequent

Alone with the victim in the motel

room, the defendant proceeded to give

her heroin which she administered

herself or which he administered to

her. She was an heroin addict. After

the initial injections, the defendant

subsequently injected large dosages of

heroin into the victim.

When Doris Van Der Veer returned

to the room, the victim was lying part

on and part off the bed on her back.

She was cyanotic. The defendant had a

telephone and face-to-face contact with state

law enforcement officials pursuant to her

activities as a paid informant of the Arizona

state police agency in regard to drug

trafficking in Tucson. Jeffers v, Ricketts, 627

F. Supp. 1334, 1347 (D. Ariz. 1986); T. 6:43-55,

7:47-48, 7:116-34, 8:70, 8:82-89. Because Ms.

Van Der Veer refused to talk to the police or to

testify until being granted immunity for two

federal weapons violations and “heroin transac-

tions, marijuana transactions, [armed] burglary,

and ... [being an] accessory to murder,” Ms. Van

Der Veer’s "[c]redibility ... was in issue.”

Jeffers v, Ricketts, 627 F. Supp. at 1344. See

T. 5:83, 6:15, 6:217-19, 7:55-67, 7:130-31, 8:54,

8:63, 8:98-110, 8:113-15, 9:171, 9:193-97,

12:107-09, 13:144-59.

4Every prosecution and defense witness who knew

Ms. Cheney testified that she “had an enormous

appetite for heroin" (T: 5-105) and had a history

of injecting or ingesting as much heroin or “any

narcotic" as “she could get her hands" on at one

time, often lapsing into unconsciousness when she

did so. T. 10:81, 10:94-97, 11:119, 11:122,

14:19, 14:44, 15:18-22, 15:96-99, 15:185.

gun in his hand and after order[ing)

Van Der Veer to lock the door and stay

in the room, he tied the victim’s arms

and injected some additional heroin

into her hand.

He asked Van Der Veer to check the

victim and see if she was still alive.

Van Der Veer did and and [sic]

determined that the victim was still

breathing although there was hardly any

pulse, and she had started to foam at

the mouth.

The defendant then strangled the

victim with a belt and with his hands

until her breathing did stop. During

all this period of time, the victim was

completely limp and unable to resist in

any way.

Shortly thereafter the defendant

beat the dead victim with his hands

about the face four or five times.> He

then took the victim off the bed and

placed her body in the shower stall in

the motel room where it remained for

three days.

J.A. 13-14 (footnotes added).

The trial court found that Mr. Jeffers

S"While striking the victim," Mr. Jeffers cursed

her and “stated that each blow was for one of the

persons [whose arrest] ... Jeffers believed Penny

[Cheney] to have been responsible for ...."

Jeffers v. Ricketts, 627 F. Supp. at 1360.

"may have had reason to be provoked” and

"was under some [emotional] stress" due

to Ms. Cheney’s rejection of his

proposal that they live together again

and 1er insistence that any resumption of

relations between them be predicated on

his paying her money or drugs. J.A. 16.

See Apr. 14, 1978 T. 62-65; June 20, 1980

T. 9-10, 16-17. The court also found

that Mr. Jeffers was a heroin addict and

“was both drinking and using narcotics on

the day of the offense." J.A. 15. See

T. 5:103-04, 5:137-38, 6:213-15; Apr. 14,

1978 T. 62-64; June 20, 1980 T. ll, 16,

43-44, 77-79. Ms. Van Der Veer testified

that a few weeks after Ms. Cheney died,

Mr. Jeffers became so depressed about her

death that he attempted to and nearly did

commit suicide, injecting at least eight

doses of heroin and ingesting substantial

quantities of valium, darvon, chloro-

fe i eS

hydrate tablets (a sleeping pill), and

whiskey. T. 6:33-34, 7:110-11 9:178-

79, 9:220-21, 14:164-71, 17:42-45.

B. Trial Court Proceedings

On February 9, 1978, a jury convicted

Mr. Jeffers of premeditated first-degree

murder.

Two months later, the trial judge

conducted a sentencing hearing at which

be sentenced Mr. Jeffers to die. Apr.

14, 1978 T. 52-82. J.A. 5-10. Following

this Court’s decision in Lockett v. Ohio,

438 U.S. 586 (1978), the Arizona Supreme

Court remanded Mr. Jeffers’ case for

resentencing under a procedure permitting

broader consideration of mitigation. See

State v. Watson, 120 Ariz. 441, 586 P.2d

1253 (1978), procedure codified in Ariz.

Rev. Stat. § 13-703.

Under that procedure, the trial judge

- 10 -

could not impose a death sentence unless

the state proved at least one

statutorily enumerated aggravating

circumstance beyond a reasonable doubt.

He was required to “impose a sentence of

death if ... [he found] one or more ...

aggravating circumstances" and Mr.

Jeffers did not establish one or more

"mitigating circumstances sufficiently

substantial to call for leniency." Id. §

13-703(E). To determine whether the

mitigation warranted leniency, the trial

court had to "determine whether the

factors in mitigation outv igh[ed] the

aggravating circumstances." J.A. 66.

See Ariz. Rev. Stat. § 13-703(E).

Two days before the 1978 sentencing

hearing, the Assistant County Attorney

had informed counsel for Mr. Jeffers that

he did not think the murder qualified as

“especially heinous, cruel or depraved"

-il1-

under Arizona’s (F)(6) aggravating

circumstance, id. § 13-703(F), because

the victim did not experience any pain.

Apr. 14, 1978 T. 24, 37-38, 42. Yet at

both sentencing hearings the prosecutor

submitted the (F)(6) circumstance as we?

as the circumstance defined by subsection

(F)(2): that the defendant created a

grave risk of death to another person in

the commission of murder. Ariz. Rev.

Stat. § 13-703(F)(2). Apr. 14, 1978 T.

37-38.6

In 1978 and again in 1980, the trial

judge found both aggravating

circumstances. Each time he emphasized

the conjunctive nature of his finding

that "(t)he defendant committed the

Sat both proceedings, Mr. Jeffers argued that,

unless limited to torture, the “heinous, cruel or

depraved" circumstance was unconstitutionally

vague and overbroad, citing (in 1980) Godfrey v.

Georgia, 446 U.S. 420 (1980). Apr. 14, 1978 T.

37-44; July 10, 1980 T. 196.

- 12 <-

offense of first degree murder in an

especially heinous, cruel, and depraved

manner." J.A. 7, 12. See Apr. 14, 1978

T. 37; June 20, 1980 T..3. At the first

sentencing hearing, the trial court

explained its (F)(6) finding only by

stating that "(t]he Court has considered

the defendant’s behavior ... after the

death of the victim." J.A. 8. In 1980,

the court followed its finding with the

statement of facts quoted above on pp. 6-

7.7 J.A. 12-14.

After hearing additional evidence in

mitigation at the 1980 proceeding, the

trial judge concluded “that there are no

mitigating circumstances." J.A. 15. He

thereupon resentenced Mr. Jeffers to

The court based its "grave risk" conclusion on

the jury’s conviction of Mr. Jeffers of

assaulting Ms. Van Der Veer by pointing a gun at

her when she returned to the motel room. J.A.

6, 14.

-13-

die. J.A. 16.

C. Proceedings in the Arizona Supreme

Court

On direct appeal, the Arizona Supreme

Court affirmed Mr. Jeffers’ convictions.

State v. Jeffers, 135 Ariz. 404, 661

P.2d 1105 (1983). J.A. 17. With regard

to his death sentence, the court reversed

the trial court’s determination that mr.

Jeffers "knowingly created a grave risk

of death to another person,"® and also

reversed the trial court’s conclusion

that the defendant “committed the offense

in an especially ... cruel ... manner:"

(T)he element of cruelty was not

proven. There was no evidence that the

victim suffered any pain. It appears

8the court noted that its "grave risk" decisions

involved “indiscriminate attacks in which the

murderous act itself (had) put others in a danger

zone, such as bombing an inhabited building” and

refused to “stretch the statute to the extreme

length" to which the trial court had stretched

it. J.A. 58-59.

from the record that after the

injection of heroin, the victim lost

consciousness and never regained it

before she died. Therefore, the

victim experienced no pain or mental

suffering and the murder was not

‘cruel’ for purposes of A.R.S. §

703 (F) (6).

J.A. 60.

Coming to the last remaining basis on

which it could sustain Mr. Jeffers’ death

sentence, the Arizona Supreme Court noted

that the "sentencing judge apparently

based his finding that the murder was

‘especially heinous ... and depraved’ on

Doris [Van Der Veer’s] testimony that

appellant strangled the victim while she

was totally unable to resist, beat the

dead victim about the face and reviled

her" and on "“appellant’s [manner of]

disposing of the body." J.A. 60-61.

Foreswearing reliance on the latter

factor -- on which, the supreme court

acknowledged, the trial court “largely”

- 15 -

had relied -- the supreme court concluded

that "the events surrounding the murder

itself support the trial court’s finding

that the murder was ‘especially heinous

+++ and depraved.’" J.A. 61-62. In

reaching this conclusion, the court

referred to dictionary definitions of

"heinous" as "‘hatefully or shockingly

evil; grossly bad’" and of "depraved" as

"marked by debasement, corruption,

perversion or deterioration.’" It noted

two factors that its recent decision in

State v. Gretzler, 135 Ariz. 42, 659 P.2d

1 (1983), had extracted from previous

cases and identified as ones "such as"

those that capital sentencing judges

could consider (but need not rely on):

"the infliction of gratuitous violence on

the victim" and "the apparent relish with

which the defendant commits the murder."

It then concluded that Mr. Jeffers’ words

- 16 -

and actions at the time of the killing

“establish that the offense was

committed in an especially heinous and

depraved manner." J.A. 60-63.

After reviewing the evidence in

mitigation -- inter alia, provocation,

emotional stress, and intoxication --

the Arizona Supreme Court replaced the

trial court’s "no mitigating

circumstances" finding with the finding

that Mr. Jeffers had shown "no mitigating

factors sufficiently substantial to...

outweigh the aggravating circumstance[]."

J.A. 66. It rejected Mr. Jeffers’

Godfrey challenge to the "heinous, cruel

or depraved" aggravating circumstance,

finding that Gretzler and cognate case

law had narrowed the statutory phrase by

"limit(ing] its application to cases

which stand apart from the norm," J.A.

64, and emphasizing its insistence “that

- 17 -

the murder be especially cruel or

especially depraved before this section

would apply," J.A. 63 (emphasis in

original). It thus affirmed Mr. Jeffers’

death sentence.

D. Federal Habeas Corpus Proceedings

Mr. Jeffers’ sought federal habeas

corpus relief, alleging that Arizona’s

"interpretation" of the "especially

heinous ... or depraved" aggravating

circumstance "is unconstitutionally

overbroad and vague and permits the

arbitrary imposition of the death

penalty." First Amended Petition, at 17.

The district court rejected this

contention. Jeffers v. Ricketts, 627 ¥.

Supp. 1334, 1359-60 (D. Ariz. 1986).

In the Court of Appeals, Mr. Jeffers

argued that his challenge to the

“especially heinous" circumstance

- 18 -

encompassed three questions: Whether the

words of the statute are unconsti-

tutionally vague and overbroad on their

face (citing Godfrey v. Georgia, 446 U.S.

at 428-29); whether the Arizona Supreme

Court had failed to "consistently define([

the statute] by ‘clear and objective

standards’ that ‘provide specific and

detailed guidance’ that makes ‘rationally

reviewable the process for imposing a

sentence of death’" (citing jd. at 428);

and whether the statute was “applied to

the capital defendant ... in an overly

broad manner" (citing jd. at 432).

Opening Brief of Appellant, at 51-52.

Mr. Jeffers emphasized that he was not

inviting the court to express a

"subjective opinion’" about which cases

are and are not “especially heinous or

depraved" but rather to determine whether

Arizona’s interpretation of the

- 19 -

circumstance "gives [a] ‘principled way

to distinguish this case, in which the

death penalty was imposed, from the many

in which it was not.’ Godfrey [v.

Georgia], 446 U.S. at 432." Appellant’s

Reply Brief, at 29.

Because the Ninth Circuit had earlier

ruled that the "especially heinous" cir-

cumstance is neither void on its face

(inasmuch as "‘the Arizona Supreme Court

need not construe the statute open-

endedly’") nor void as applied in cases

in which "cruelty" is found (on the

ground that the victim "suffered

greatly” before dying), the Court of

Appeals could not accept Mr. Jeffers’

argument "that the statute is ~ id on its

face." Jeffers vy. Ricketts, 832 F.2d

476, 482-86 (9th Cir. 1987) (quoting

Chaney vy. Lewis, 801 F.2d at 1191, 1193,

1195 (9th Cir. 1986), cert. denied, 481

- 20 -

U.S. 1023 (1987)). It noted, however,

that "‘[{hjeinous’ and ‘depraved’ are

inherently more difficult terms to

define than is ‘cruel,’" and it sustained

Mr. Jeffers’ “as applied" attack on the

"heinous ... or depraved" part of the

circumstance. 832 F.2d at 482-83.

Comparing the definition of those terms

that was applied in Mr. Jeffers’ and in

other Arizona cases, the court concluded

that the "relish" and “gratuitous

violence" factors to which the Arizona

Supreme Court had referred in affirming

his death sentence were so highly

"subjective" and so lacking in "meaning-

ful sense" that they provided no *\prin-

cipled way to distinguish this case, in

which the death penalty was imposed from

the many cases in which it was not.’"

832 F.2d at 484-85 (quoting Godfrey v.

Georgia, 446 U.S. at 433).

.

- 21-

Judge Wilson dissented. He found that

Arizona’s “statutory definition" of the

"heinous ... or depraved" circumstance

was constitutionally sufficient and that

a "‘rational factfinder’" could determine

that Mr. Jeffers’ case fell within that

definition. 832 F.2d at 487-88 (Wilson,

J., dissenting) (quoting Jackson v.

Virginia, 443 U.S. 307, 313 (1979)).

The State thereupon filed a Petition

for Rehearing and Rehearing En Banc, for

the first time raising a "question

regarding the proper standard for

reviewing state court findings of

aggravating circumstances." Id. at 2.

The panel deferred ruling on the State's

request “pending further decision of this

court, sitting en banc in Adamson v.

Ricketts." Mar. 30, 1988 Order, at 1.

On December 22, 1988, the en banc court

in Adamgon concluded that the

- 22 -

constitutional defect that the Jeffers

majority had found in Arizona’s

application of the “especially heinous

... or depraved" component in Mr.

Jeffers’ case pervaded the Arizona

courts’ construction of that component in

Arizona death cases as a whole. Adamson

v. Ricketts, 865 F.2d 1011, 1029-39 (9th

Cir. 1988) (en banc). The court

discerned three problems with Arizona’s

construction:

First, a broad range of definitions

ha({s] been provided for the terms

‘heinous’ ... and ‘depraved,’ each of

which tends to employ terms or phrases

as prone to subjectivity and ambiguity

as those they were meant to define.

Second, the Arizona courts have not

restricted the creation of new defini-

tions and factors that could con-

stitute an (F)(6) finding. Third,

even the most concrete of those

definitions have been inconsistently

applied.

Adamson v. Ricketts, 865 F.2d at 1031.

Following announcement of Adamson, the

Jeffers’ panel denied the State’s

- 23 -

rehearing petition. Because "(t]he full

court has been advised of the suggestion

for an en banc rehearing, and no judge of

the court has requested a vote on the

suggestion," the court also denied

rehearing en banc. Apr. 14, 1989 Order,

at l.

SUMMARY OF ARGUMENT

The Court’s Eighth Amendment decisions

dictate the outcome of this case. Since

Furman v. Georgia, 408 U.S. 238 (1972),

the Court has insisted that narrowing

capital-sentencing discretion "is a

fundamental constitutional requirement,"

Maynard v. Cartwright, 108 S. Ct. 1853,

1858 (1988), that in States like Arizona,

which use aggravating circumstances to

serve the narrowing function, mandates

that each circumstance "provide a

*‘"meaningful basis for distinguishing the

- 24 -

few cases in which [the death penalty) is

imposed from the many cases in which it

is not."’" Godfrey v. Georgia, 446 U.S.

420, 427 (1980) (citations omitted).

Petitioner argues that a State (as did

Arizona here) may rely on an undelimited

determination that a killing is

“especially heinous ... OF depraved" to

serve that constitutional narrowing

requirement, and that the federal courts

must confine their review of an

“especially heinous ... OF depraved"

determination to a "rational factfinder"

analysis. The effect of Arizona’s

arguments is to overrule Maynard v.

Cartwright and Godfrey v. Georgia. For

“an ordinary person could honestly

believe that every justified, inten-

tional taking of human life is

‘especially heinous,’" Maynard v.

Cartwright, 108 S. Ct. at 1859, hence a

- 25 =-

“rational factfinder" test necessarily

would approve every application of the

"especially heinous" and cognate

circumstances, including the applications

the Court disapproved in Godfrey and

Maynard. The law of the Eighth Amendment

is otherwise.

The Constitution requires, first, that

aggravating circumstances provide a

“principled means ... to distinguish

those murders [that receive[] the (death)

penalty from those that d[o} not."

Maynard v. Cartwright, 108 S. ct. at

1858. On their faces, the words

"especially heinous ... or depraved"

provide no such narrowing principle.

Nor, as the Court of Appeals in Adamson

v. Ricketts, 865 F.2d 1011 (9th Cir.

1988) (@n banc), concluded, following a

comprehensive review of Arizona cases, is

that defect cured by Arizona’s

- 26 -

construction of the words, which

authorizes sentencers to rely upon a

constantly expanding pastiche of

synonyms and factors, none of which, the

Arizona Supreme Court has ruled, is

either sufficient to require or necessary

to support an “especially heinous ... or

depraved" finding. As in Maynard, the

construction of the circumstance runs

afoul of the Constitution, because the

Arizona courts, although considering

numerous factors "to be relevant ...

(have) ‘refused to hold that any one of

those factors must be present for a

murder to satisfy [the] aggravating

circumstance.’" Maynard v. Cartwright,

108 S. Ct. at 1857 (emphasis in original)

(citation omitted).

The Eighth Amendment requires, second,

that the state courts “have applied in

this case a constitutional construction"

- 27 =

of the "especially heinous ... or

depraved" circumstance. Godfrey v.

Georgia, 446 U.S. 420, 432 (1980). In

order to justify Mr. Jeffers’ death

sentence on the basis of that

circumstance, the Arizona courts simply

dressed up the mens and actus rea

accompanying all unjustified,

premeditated first degree murders in the

terms "relish" and "gratuitous violence."

Because those factors, and the elements

of murder they adorn, "cannot be said to

+++ reflect[{] a consciousness materially

more ‘depraved’" than that characterizing

any first degree murder so as to provide

a “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. at

433, Mr. Jeffers’ death sentence runs

afoul of the rule of Godfrey.

The State’s efforts to distract the

Court from the dictates of Maynard and

Godfrey with a spurious “standard of

review" argument are unavailing. First,

the State unavoidably concedes that the

standard of review applied below

properly applies to the Maynard-Adamson

ground of relief, then tries to divert

the Court from considering that ground

on the mistaken bases that the Court of

Appeals did not rely on it and that this

Court accordingly cannot address it. But

see Smith v. Phillips, 455 U.S. 209,

215, n.6 (1982). Second, Arizona

conflates the "rational factfinder"

standard of review that applies to a

state court’s finding under the

"especially heinous ... and depraved"

circumstance, insofar as it is a matter

of state law, with the distinct standard

of review that applies when the

- 29 -

circumstance is used by the State to

satisfy the "constitutionally necessary

narrowing function," Pulley v. Harris,

465 U.S. 37, 50 (1984). Because the

latter issue is a federal constitu-

tional issue requiring independent

federal judicial consideration, and

because Arizona avoids that issue only by

disregarding the holdings of Godfrey and

Maynard that the words "especially

heinous ... or depraved," standing alone,

are not constitutionally sufficient,

respect for reason and precedent require

rejection of the State’s argument.

ARGUMENT

I. INTRODUCTION

Settled Eighth Amendment principles

resolve this case. "Since Furman[ v.

Georgia, 408 U.S. 238 (1972)}, [the

Court’s) cases have insisted that the

- 30 -

channeling and limiting of the senten-

cer’s discretion in imposing the death

penalty is a fundamental constitutional

requirement for sufficiently minimizing

the risk of wholly arbitrary and

capricious action." Maynard v.

Cartwright, 108 S. Ct. 1853, 1858

(1988). In States like Arizona that

rely on aggravating circumstances to

accomplish this "constitutionally

necessary narrowing function," Pulley v.-

Harris, 465 U.S. 37, 50 (1984), those

circumstances, "must ‘genuinely narrow

the class of persons eligible for the

death penalty and must reasonably justify

the imposition of a more severe sentence

on the defendant compared to others found

guilty of murder.’" Lowenfield v.

Phelps, 108 S. Ct. at 554 (quoting Zant

- 31-

vy. Stephens, 462 U.S. 862, 877 (1983)).9

As Justice White originally described the

function of an aggravating circumstance:

"the types of murders for which the death

penalty may be imposed become more

narrowly defined and are limited to those

which are particularly serious or for

which the death penalty is peculiarly

appropriate." Gregg v. Georgia, 428 U.S.

*Tracking the Georgia model, Arizona in the wake

of Furman chose not to narrow the scope of its

first-degree murder provision, which encompasses

a Sroad category of premeditated and felony

homicides, and instead "act([ed] ... to narrow the

class of murders subject to capital punishment by

specifying [seven] statutory aggravating

circumstances, one of which must be found .._ to

exist beyond a reasonable doubt" at the senten-

cing phase "before a death sentence can ever be

imposed.” » 428 U.S. 153, 196-97

(1976) (opinion of Stewart, Powell and Stevens,

JJ.). See Ariz. Rev. Stat. §§ 13-703(E) and (F).:

,» 467 U.S. 203, 210 (1984). Mr.

Jeffers’ death sentence rests exclusively on

the "heinous ... or depraved” finding. If “that

- aggravating circumstance [(is] struck down, no

valid statutory aggravating circumstance [would]

remain(]." , 463 U.S. 939, 969

n.16 (1983) (Stevens, J., concurring) .

- 32 -

at 222 (White, J., concurring) .}°

A State’s reliance on "statutory

aggravating circumstances [to] play

[this] constitutionally necessary

function" entails

the fundamental requirement that each

statutory aggravating circumstance must

satisfy a constitutional standard

derived from the principles of Furman

itself. For a system "could have stan-

dards so vague that they would fail

adequately to channel ... sentencing

decision patterns ... with the result

l0accord, e.g... Lowenfield v. Phelps, 108 S. Ct.

at 554; McCleskey v. Kemp, 481 U.S. 279, 305

(1987); Barclay v. Florida, 463 ¥.S. 939, 960

(1983) (Stevens, J., concurring). What some-

times is denominated here simply as the

"narrowing function” is actually two require-

ments: The circumstance must "circumscribe the

class of persons eligible for the death penalty,

, 462 U.S. at 878, so that it

encompasses something less than “every unjus-

tified, intentional taking of life," Maynard v.

Cartwright, 108 S. Ct. at 1859; and the

circumstance must achieve that winnowing by means

of some “objective, evenhanded and substantively

rational" principle, “rather than [by means of]

emotion’" or discrimination, Zant v.

‘caprice ...

Stephens, 462 U.S. at 879; Godfrey v, Georgia,

446 U.S. at 433 (quoting Gardner v. Florida, 430

U.S. 349, 350 (1978) (plurality opinion)). See

| 479 U.S. 538, 544 (1987)

(O'Connor, J., concurring).

- 33°

that a pattern of arbitr

a and

on. tse ry pone ar a like that found

=e utional in Furman could

Zant v. Stephens

(quoting Gregg v. Georgia, 428 U.S. 153,

195 n.46 (1976) (opinion of Stewart,

Powell and Stevens, JJ.)). Each

aggravating circumstance "must, in short,

provide a ‘"meaningful basis for distin-

guishing the few cases in which {the

penalty) is imposed from the many cases

in which it is not."’" Godfrey v.

Georgia, 446 U.S. at 427 (quoting Gregg

Vv. Georgia, 428 U.S. at 188 (opinion of

Stewart, Powell and Stevens, JJ.)

(quoting Furman v. Georgia, 408 U.S. at

313 (White, J., concurring) )).

As did the dissenting judge below,

Arizona argues here that a State may rely

on an undelimited determination that a

killing is “especially heinous ... or

depraved" to serve the constitutionally

necessary narrowing function, and that

then the federal courts must restrict

their review of the "especially heinous

... or depraved" determination to the

rational factfinder" standésrd of Jackson

v. Virginia, 443 U.S. 307, 313 (1979).

See 832 F.2d at 488 (Wilson, J.,

dissenting); Petitioner’s Brief, at 11-

13. We will detail subsequently the

specific errors in these arguments; for

now, we note only that their joint effect

is to overrule Maynard v. Cartwright and

Godfrey v. Georgia. For, as those cases

recognize, “an ordinary person could

honestly believe that every unjustified,

intentional taking of life is ‘especially

heinous,’" Maynard v. Cartwright, 108 S.

Ct. at 1858, 1859; see Godfrey v.

Georgia, 446 U.S. at 428-29 ("A person of

ordinary sensibility could fairly

- 33 -

characterize every murder as ‘out-

rageously or wantonly vile, horrible and

inhuman’ ") ; Gregg v. Georgia, 428 U.S. at

201 (opinion of Stewart, Powell and

Stevens, JJ.) ("It is, of course,

arguable that any murder involves

depravity of mind"); and accordingly

u Jackson v. Virginia’s

nder ‘s “rational

factfinder" test, a state-court

application of the “especially heinous

-++ OF depraved" circumstance could never

be found federally unconstitutional.

The law of the Eighth Amendment is

otherwise. To satisfy the Eighth

Amendment, there must be a "* "meaningful

basis for distinguishing the few cases in

which [the death penalty) is imposed from

the many cases in which it is not."’"

Godfrey v. Georgia, 446 U.S. at 427

(quoting Gregg v. Georgia, 428 U.S. at

188 (opinion of Stewart, Powell and

= 36 -

Stevens, JJ.) (quoting Furman v.

Georgia, 408 U.S. at 313 (White, J.,

concurring) )).

The application of this command to a

particular case requires a federal court

to answer two questions relating to a

State’s use of the “especially heinous

. or depraved" circumstance. First,

does the construction of the circumstance

that the state courts employ in culling

death from life cases provide a "prin-

cipled means ... to distinguish those

that receive[{] the death penalty from

those that d[{o] not?" Maynard v.

Cartwright, 108 Ss. ct. at 1858.11

Second, if so, “whether in light of the

facts and circumstances of the murder}

that [the defendant] was convicted of

laccord Adamson v. Ricketts, 865 F.2d 1011,

1029-30 (9th Cir. 1988) (en banc);

Cartwright v.

Maynard, 822 F.2d 1477, 1485 (10th Cir. 1987) (en

banc), aff'd, 108 S. Ct. 1853 (1988).

- 37 «

committing, the [state courts] can be

said to have applied in this case a

constitutional construction ... ?"

Godfrey v. Georgia, 446 U.S. at 432.}2

We show in Parts in II(A) and (B) below

that Maynard and Godfrey, respectively,

invalidate Mr. Jeffers’ death sentence

under these analyses. In Part III we

deal with the State’s attempt to obscure

these conclusions by an incomplete and

inapposite “standard of review" analysis.

12accord Barclay v. Florida, 463 U.S. 939, 948

n.5 (1983) (plurality opinion); Newlon v.

Armontrout, 885 F.2d 1328, 1333-35 (8th Cir.

1989); Proffitt vy. Wainwright, 685 F.2d 1227,

1262-65 (llth Cir. 1982).

- 38 -

AND GODFREY DICTATE THE

” OURT OF APPEALS’ CONCLUSION THAT

THE ARIZONA "ESPECIALLY HEINOUS

In Maynard v. Cartwright, the Court

upheld a ruling of the United Stat

Court of Appeals for the Tenth Circuit

"that the words ‘heinous,’ ‘atrocious, ’

and ‘cruel’" in Oklahoma’s capital-

sentencing statute "d[{o) not on their

face offer sufficient guidance to the

[sentencer] to escape the strictures of

[the] judgment in Furman" and “that the

Oklahoma [{courts’] construction of the

aggravating circumstance was ‘unconstitu-

tionally vague:’*

(The Tenth Circuit’s] reading of the

state) cases was that while the

epee I court had considered the

ae

- 39 -

attitude of the killer, the manner of

the killing, and the suffering of the

victim to be relevant and sufficient to

support the aggravating circumstance,

that court had "refused to hold that

any one of those factors gust be

present for a murder to satisfy this

aggravating circumstance." Rather, the

Oklahoma court simply had reviewed all

of the circumstances of the murder and

decided whether the facts made out the

aggravating circumstance.

Maynard v. Cartwright, 108 S. Ct. at 1857

(quoting Cartwright v. Maynard, 822 F.2d

1477, 1483, 1492 (10th Cir. 1987) (en

banc) (emphasis in original)). Because

the Tenth Circuit had “with some care,

reviewed the evolution in the inter-

pretation of the ‘especially heinous,

atrocious, or cruel’ aggravating

circumstance by the Oklahoma Court of

Criminal Appeals," and because this Court

“normally defer[(s} to Courts of Appeals

in their interpretation of state law,"

the Court saw "no reason not to accept

the Court of Appeals’ statements about

- 40 -

state law in this case." Maynard v.

Cartwright, 108 S. Ct. at 1857. Testing

this body of state law under Godfrey and

Furman, the Court agreed with the Tenth

Circuit that it was deficient.

The present case is indistinguishable

from Maynard. In Adamson v. Ricketts,

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

following which the panel below denied

the State’s rehearing petition in Mr.

Jeffers’ case -- the en banc Court of

Appeals for the Ninth Circuit, without

dissent on this point,+*? concluded after

a comprehensive anaiysis of all the

Arizona cases that Arizona’s construction

of the words "heinous" and "depraved"

does not satisfy Furman’s limiting and

l3pour members of the en banc court dissented P

from the majority's similar conclusion in —.

to the Arizona courts’ application of the “crue

omponen F)(6) aggravating circumstance.

See pommetoeingy Ain 865 F.2d at 1055-58

(Brunetti, J., concurring and dissenting) .

- 41 =

channeling requirement and has produced

unconstitutionally random and inconsis-

tent results. Jd. at 1031-38. Like the

en.bane Tenth Circuit in Cartwright, the

en banc court in Adamson found that

words as vague as “especially heinous ...

or depraved" are not constitutionally

salvaged by a definitional strategy that

enumerates numerous factors which May be

relied upon, but does not "state[] what

specific factors are necessary" or

“include any instructions to limit future

review to the enumerated factors." Id.

at 1033.

Given the nearly point-for-point

identity of Oklahoma’s pre-Cartwright

construction of that State’s "especially

heinous" aggravating circumstance -- as

described in the Tenth Circuit’s decision

in Cartwright -- and Arizona’s con-

struction of its analogous provision --

- 43 <-

as described in painstaking detail in

Adamson -- the Court’s affirmance in the

former case dictates a like result

here. 14

l4arizona contends that the court below did not

premise its decision on the Maynard-Adamson

ground for relief and that the ground is not

before this Court because Mr. Jeffers, although

he won all the relief that he sought below with

regard to the “especially heinous ... or

depraved” circumstance, did not cross-petition

for certiorari. See Petitioner’s Brief, at 7 &

n.2. But see R. Stern, E. Gressman & S. Shapiro,

Supreme Court Practice 382 (6th ed. 1986)

(citing decisions) (certiorari does not lie to

review decisions in which the petitioning party

prevailed). The State is in error.

First, Arizona is mistaken about the nature of

the attack on the “especially heinous”

circumstance that the opinion below rejected.

Contrary to the State’s assertion in its question

presented, the court below nowhere "determined

that a state court hag adopted a constitutional -

ly narrow definition of [the “especially

heinous"] aggravating circumstance,” but only

that a state court could do so were it so minded.

Thus, just as this Court did in Gregg v. Georgia,

428 U.S. at 201-02, and Proffitt v. Florida. 428

U.S. 242, 255-56 (1976) -- without in any way

foreclosing the later decisions in Godfrey and

-- the panel below simply ruled that it

would not strike down the statute on its face

without first examining whether the Arizona

courts’ application of the statute cured its

facial infirmities. §e¢ 832 F.24 at 482-83. The

court below accordingly foreclosed no part of

- 43 -

As Maynard observes, words like

"heinous" and "depraved" "d[o}] not on

their face offer sufficient guidance to

the jury to escape the strictures of our

judgment in Furman v. Georgia." Maynard

vy. Cartwright, 108 S. Ct. at 1859. See

also Newlon v. Armontrout, 885 F.2d

Mr. Jeffers’ challenge to the Arizona courts’

application of the circumstance -- to the

contrary, the court granted him relief on that

challenge -- and no part of that challenge is

foreclosed here, even under the State’s curious

theory that this Court may not consider arguments

that the court below rejected.

Second, by holding the State's rehearing and

rehearing en banc requests pending its decision

in Adamson, and then denying them, the Court of

Appeals did consider the Adamson analysis as the

basis for its final judgment granting Mr. Jeffers

relief.

Finally, regardless of the ground on which the

Court of Appeals ruled, "[rjespondent may, of

course, defend the judgment below on any ground

which the law and the record permit, provided the

asserted ground would not expand the relief which

has been granted." Smith v. Phillips, 455 U.s.

209, 215 n.6 (1982). Accord, e.g., Chevron

, 467

U.S. 837, 842 n.7 (1985); Washington v, Yakima

Indian Nation, 439 U.S. 463, 476 n.20 (1978):

, 434 U.S.

159, 166 n.8 (1977); R. Stern, E. Gressman & S.

Shapiro, gupra at 382.

1328, 1334 (8th Cir. 1989) ("Absent a

clear limiting directive ... words [such

as] ‘depravity of mind’ ... are not

capable of objective determination").

Construction is accordingly necessary.

And in Arizona a certain manner of

construction has been tried. But that

construction, based on the oft-emphasized

disjunctive strategy of the "especially

heinous ... or depraved" clause itself,

is "so broad that it ... vitiate([s) the

role of the aggravating circumstance in

guiding sentencing ... discretion.”

McCleskey v. Kemp, 481 U.S. 279, 305

(1987) .25

As did the Oklahoma Court of Criminal

15 ture of the

Emphasizing the disjunctive na

statute are, e.g., State v. Beaty, 158 Ariz. 232,

242, 762 P.2d 519, 529 (1988); State v. Wallace,

151 Ariz. 362, 366, 728 P.2d 232, 236-37 (1986);

State v. Libberton, 141 Ariz. 132, 139, 685 P.2d

1284, 1291 (1984); State vy. Richmond, 136 Ariz.

312, 319, 666 P.2d 57, 64 (1983).

- 45 -

Appeals’ decisions under review in

Maynard, (see Cartwright v. Maynard, 822

F.2d at 1487), the Arizona Supreme

Court’s decisions began the process of

interpreting the "especially heinous"

_ circumstance by quoting the Florida gloss

on an “especially heinous" aggravating

circumstance that this Court had found

sufficient in Proffitt v. Florida, 428

U.S. 242, 256 (1976). As recited by the

Arizona Supreme Court, that gloss

provides that

" ..++. heinous means extremely wicked

or shockingly evil; ... [and] that

atrocious means outrageously wicked and

vile .... What is intended to be

included are those capital crimes

where the actual commission of the

capital felony was accompanied by such

additional acts as to set the crime

apart from the norm of capital felonies

-- the conscienceless or pitiless crime

which is unnecessarily torturous to the

victin." , 283 So.2d 1,

9 (Fla. 1973).

State v. Watson, 120 Ariz. 441, 447, 586

P.2d 1253, 1259 (1978). Tracking the

- 46 -

Florida Supreme Court’s quotation of

Webster’s definitions of "heinous" and

"atrocious," the Arizona Supreme Court

next -- in what remains its most

frequently cited construction of the

terms!® -- recited Webster’s definitions

of “heinous” and "depraved:"

The words Panes monn soe sens

depraved’ have meanings at are

9 person of average intelligence and

understanding. Webster’s Third New

International Dictionary defines them

as follows:

heinous: hatefully or shockingly

evil: grossly bad.

depraved: marked by debasement,

corruption, perversion or

deterioration.

State v. Knapp, 114 Ariz. 531, 543, 562

P.2d 704, 716 (1977).

As eventually came to be the case in

Oklahoma, however, Arizona’s interpreta~

l6see Appendix B, Tables B-1 (col. 5) and B-3.

- 47 -

tion did not follow the Florida approach

of reading all parts of its definition

coniunctively and in pari materia with

the phrase “unnecessarily torturous to

the victim."17 Neither torture nor any

other concrete set of facts was required

by the case law to support a finding of

heinousness or depravity. Rather,

Arizona sentencers frequently have been

upheld in finding the "especially heinous

+++ Or depraved" circumstance to be

present, notwithstanding the absence of

any pain or torture to the victim, if

they deem an offense to be, for example,

See Proffitt v. Florida, 428 U.S. at 255

(discussing State v. Dixon, 283 So.2d at 9)

(Florida construction approved because of its

objective “unnecessarily torturous" requirement) :

Cartwright vy. Maynard, 822 F.2d at 1487. See

also , 446 U.S. at 431 (Geor-

gia’s definition, the abandonment of which in

that case led to the Court’s reversal, required

"that the word, ‘torture,’ must be constructed in

pari materia with ‘aggravated battery’ so as to

require evidence of serious physical abuse of the

victim before death").

- 48 -

(1) “marked by debasement,"1% "hatefully"

or "shockingly evil,"19 or "grossly

mes beeen ©

bad;"29 (2) "conscienceless or

pitiless;"21 (3) "unnecessary;"*? (4)

18_ g., State v. Fulminante, 778 P.2d 602, 610

(Ariz. 1988); State v. Vickers, 129 Ariz. 506,

515, 633 P.2d 315, 324 (1981); State v. Ceja, 126

Ariz. 35, 40, 612 P.2d 491, 496 (1980). See

also, e.g., , 158 Ariz. 232, 242,

762 P.2d 519, 529 (1988) ("marked by

corruption"); State v. Madsen, 125 Ariz. 346,

352, 609 P.2d 1046, 1052 (1980) ("marked by

perversion").

19¢ g., State v. Fulminante, 778 P.2d 602, 620,

621 (1988): State v, Beaty, 158 Ariz. 232, 242,

762 P.2d 519, 525 (1988); State v. Carriger, 143

Ariz. 142, 150, 692 P.2d 991, 1009 (1984); State

_ 135 Ariz. 63, 69, 659 P.2d 22, 28

(1983); State v, Ricky Tison, 129 Ariz. 526,

543, 633 P.2d 335, 352 (1981); State v. Ceja, 126

Ariz. 35, 39-40, 612 P.2d 491, 496 (1980).

20state v, James, 141 P.2d 141, 147, 685 P.2d

1293, 1299 (1984).

2le g., State v. B. Smith, 146 Ariz. 491, 505,

707 P.2d 289, 301 (1985); State v. Lujan, 124

Ariz. 365, 392, 604 P.2d 629, 636 (1979).

22e g., State v. Martinez-Villareal, 145 Ariz.

441, 461, 702 P.2d 670, 690 (1985). See e.g...

, 141 Ariz. 492, 501, 687 P.2d

1247, 1256 (1984) ("senseless").

"especially,"*? or “particularly"24

"heinous ... or depraved" or "more

heinous ... or depraved than usual;"25 or

(5) -- in the Arizona Supreme Court’s

second most frequently cited formulation

-- if the courts conclude that the crime

is characterized by any "additional"2®

acts or circumstances beyond the bare

elements of first-degree murder that

place the offense “above the norm of

235 g., State v. Johnson, 147 Ariz. 395, 401, 710

P.2d 1050, 1056 (1985); , 124 Ariz.

365, 373, 604 P.2d 629, 637 (1979).

24 , 160 Ariz. 424, 428. 773 P.24

483, 487 (1989).

25 , 166 Ariz. 491, 503, 707 P.24

289, 301 (1985).

265 g., State v. Correll, 148 Ariz. 468, 481. 715

P.2d 721, 734 (1986); State v. B. Smith, 146

Ariz. 491, 503, 707 P.2d 289, 301 (1985): State

v.Cejig, 115 Ariz. 413, 416, 565 P.2d4 1274, 1277

(1977).

- 50 =-

first degree ... murders."?’ Yet,

27state v. Beaty, 158 P.2d 232, 247, 762 P.2d

519, 534 (1988); State v. Correll], 148 Ariz. 468,

485, 715 P.2d 721, 738 (1986). Accord, e.g...

, 137 Ariz. 278, 295, 670 P.2d

383, 400 (1983) ("apart from the usual or norm");

State v. Richmond, 136 Ariz. 312, 314, 666 P.2d

57, 64 (1983) ("*‘apart from the normal first

degree murder’"); State v, Jeffers, 135 Ariz. at

430, 661 °.2d at 1131 ("cases which stand apart

from the norm"); State v. Ortiz, 131 Ariz. 195,

210, 639 P.2d 1020, 1035 (1982) ("more heinous

and depraved than the norm of first degree mur-

ders"); other decisions collected in Appendix B,

Table B-1 (col. 6). Compare Eddings v. State,

616 P.2d 1159, 1167 (Okla. Cr. App. 1980), rev'd

on other grounds, 455 U.S. 104 (1982) (quoted in

Cartwright v. Maynard, 822 F.2d at 1487) ("the

Legislature . . . intended to reach killings

which are ‘out of the ordinary’"). Arizona

decisions, in addition to Jeffers itself, in

which the court disjoined torture, or “cruelty,”

from the rest of the (F)(6) provision and found

the (F)(6) factor present notwithstanding a

finding that the victim did not suffer physically

or mentally include, e.g., the Wallace, Richmond,

Woratzeck, Zaragoza, Ortiz, and Ceja cases cited

supra notes 18, 19, 24, 26 and above. Compare

Godfrey v. Georgia, 446 U.S. at 454 (White, J.,

dissenting) (noting that the Georgia Supreme

Court "expressly rejected an analysis that would

apply the ["outrageously vile” and “torture and

aggtavated battery” portions of Georgia's)

provision disjunctively, ... an analysis that, if

adopted, would arguably be assailable on con-

stitutional grounds"). Appendix B, Table 5-1

(col 4) illustrates the catch-all nature of the

"heinous ... or depraved" components of the

(F)(6) aggravating circumstance once those

although the Arizona Supreme Court from

time to time relies on each of these

concepts as the basis for a "heinous ...

or depraved" finding and a death

sentence, it has never ruled that any one

of them defines a condition or action

that must be present to justify an

“especially heinous ... or depraved"

finding.

Indeed, State v. Gretzler, 135 Ariz.

42, 659 P.2d 1 (1983), rules precisely to

the contrary. There, the Arizona Supreme

Court “summar(ized) ... the law which

components are unlinked from cruelt

For although no Arizona trial cee ene my

Arizona high court only once, has found “cruelty”

— when “heinousness" and/or “depravity” was

pot nang those courts frequently iase death

oe = “heinous and/or depraved" findings

> od ty” is not present. It is manifest.

refore, thee the “mental or physicel" pain

— of “cruel” in Arizona lies at the “core”

stommeeame, tes thes artomn ne

, z P

of the "heinous" and — eon,

encompasses much else besides.

- §2 -

has been developing in th({is) area” and

formalized the multi-factor approach

described above. 135 Ariz. at 51, 659

P.2d at 9. The Gretzler court reiterated

Webster’s "definitions of the words

heinous ... or depraved," emphasized the

disjunctive nature of (F) (6)’s three

components, acknowledged that numerous

"factors" previously had led the Court

"to a finding of heinousness or

depravity” in the past, and listed five

such factors -- the “apparent relishing"

of murder, “gratuitous violence,"

"needless mutilation of the victim," “the

senseléssness of the crime," and the

“helplessness of the victim." 135 Ariz.

at 52-53, 659 P.2d at 10-11. But the

court made plain that no one of the five

factors nor any other factor was

sufficient in itself to require a

heinousness or depravity finding or

necessary in itself to support one.

Those factors, the court insisted, "in

isolation, need not always lead to a

holding that the crime is heinous or

depraved;" and, on the other hand, such a

finding may be made in the absence of any

of the factors, as long as other

"circumstances guch as the specific

factors discussed above [are present and

serve to] separate the crime from the

‘norm’ of first degree murders ...." 135

Ariz. at 53, 659 P.2d at 12 (emphasis

added).

If any single "standard" emerges from

Gretzler, it is this last-mentioned

formula with which the court both began

and ended its discussion. As the court

concluded, reprising its many prior and

foreshadowing its many subsequent

repetitions of the formulation: "‘First

degree murder is by its nature willful,

cruel and repugnant.’" Hence, to qualify

as “especially heinous ... or depraved,”

"the facts of th{e] case (must) set it

“apart from the norm of first degree

murders."’" Id. (quoting State v.

Steelman, 126 Ariz. 19, 26, 612 P.2da 475,

482 (1980) (quoting State vy, Brookover,

124 Ariz. 38, 41, 601 P.2d 1322, 1325

(1979))).

Or, as the formula subsequently has

been expressed:

All first degree murders are to some

extent heinous, cruel or depraved:

therefore, to warrant the imposition of

the death penalty, a murder must be

more heinous ... or depraved than

usual .... [T]o uphold this

aggravating circumstance, we must find

that defendant ——— ~++ in - oe

that not only was heinous, crue

depraved, but that was especially so. 28

28state vy. B. Smith, 146 Ariz. 491, 503, 707 P.2¢

985) (emphasis in original).

ae _ 160 Ariz. 626, 428, 773

e.g., State v. Wallace

P.2d4 983, 987 (1989) hy must be _

“particularly disturbing"); State vy. Vickers.

aan, 532, 546, 768 P.2d 1177, 1191 (1989); State

vy, Jeffers, 135 Ariz. at 430, 661 P.2d at 1131.

The constitutional defect in this

approach is the same one that led to the

result in Maynard. For Arizona’s, like

Oklahoma’s, reliance on the "contention

that the addition ef the word

‘especially’" -- or ‘abnormally’ or

‘unusually’ --

somehow guides the [sentencer’s}

discretion, even if the term "heinous"

does not, is untenable. To say that

something is “especially heinous”

merely suggests that the ... murder is

more than just “heinous,” whatever that

means, and an ordinary person could

honestly believe that every

The continued currency of the “above the norm”

and allied formulations is revealed by the

frequency with which the Arizona Supreme Court in

post -Gretzler decisions has affirmed “heinous or

depraved" findings on this basis without citing

Gretzler or even any of its factors. E.g., State

vy. Williams, 1987 W.L. 878 (Ariz. Oct. 8, 1987).

State vy. Moorman, 154 Ariz. 578, 587, 744 P24

679, 688 (1987); State vy. Graham, 135 Ariz. 209.

212, 660 P.24 460, 463 (1983); State v.

Zaragoza. 135, Ariz. 63, 70, 659 P.24 22. 29

(1983). See also. e.g., State v. Poland, 144

Ariz. 388, 405, 698 P.2d 183, 200 (1985) (relying

on dictionary definitions but not Gretzler) See

generally Appendix 8, Tables 8-1 (cols. 5-7) and

B-3.

unjustified, intentional taking of

a life is “especially heinous."

Maynard v. Cartwright, 108 S. Ct. at

1859. Accord Proffitt v. Wainwright, 685

F.2d 1227, 1264-65 n.57 (11th Cir. 1982)

(*"heinousness" standard is unconsti-

tutional if it requires that the crime

"be in some respect worse than others on

average” but "“fail(s} to indicate in

what way the crime should be *‘worse’™).

The en banc Court of Appeals in Adamson

noted three characteristics of the

Arizona case law. Each is illustrated

briefly below.

been provided for the terms

oneiacus™ and ... “depraved,” each of

which tends to employ terms or phrases

as prone to subjectivity and ambiguity

as those were meant to define.

i

- 57 -

Adamson v. Ricketts, 865 F.2d at 1031.

Standing alone, there is nothing in

Arizona’s dictionary definitions -- for

example, “shockingly evil" or "marked by

corruption" -- or in the factors with

which Gretzler illustratively supple-

mented those definitions: for example,

“senselessness," “gratuitous violence,"

“relish,” and "vile state of mind at the

time of the murder"?9 -- that provides

“any inherent restraint on the arbitrary

and capricious infliction of the death

sentence. A person of ordinary

sensibility could fairly characterize

almost every murder as ‘outrageously ...

vile ....’" Godfrey v. Georgia, 446 U.S.

at 428-29. See Proffitt v. Wainwright,

685 F.2d at 1264-65 n.57. Likewise,

29 , State v. LaGrand, 153 Ariz. 21, 36.

734 P.2d 563, 579 (1987); State v. McCall, 139

Ariz. 147, 161, 677 P.24 920, 934 (1983).

- 58 -

every unjustified murder is by that fact

alone "gratuitous" and never "sensible;"

and no murderer who deliberated on the

deed long enough to establish

premeditation can ever be absolved of

having relished the premeditated act.°°

"Although oft-repeated" therefore, the

Arizona Supreme Court’s "list of

amorphous terms and [its] definitional

distinction({s}] have failed to benefit the

trier of fact in any meaningful way."

Adamson v. Ricketts, 865 F.2d at 1032.

“Vague terms do not suddenly become

clear when they are defined by reference

to other vague terms.’" Jd. at 1032

(quoting Cartwright v. Maynard, 822 F.2d

301m this last regard, recall Robert Franklin

Godfrey's remark upon being arrested for killing

his wife and mother-in-law: “I have been

thinking about it for eight years. ... I'd do it

again," Godfrey v. Georgis, 446 U.S. at 426, and

William Thomas Cartwright’s avowal “to ‘get even’

with the Riddles," Cartwright vy. Maynard, 822

F.2d at 1488.

at 1489). Nor do they "narrow the class

of persons eligible for the death

penalty.” Zant v. Stephens, 462 U.S. at

878.

Even were the synonyms and illustrative

factors definitionally sufficient

standing alone, these phrases do not

stand alone; and they often are stood in

for by an ever-expanding host of

alternative and supplemental synonyms and

factors. The Arizona Supreme Court

repeatedly has confirmed that, although

the factors listed in Gretzler "may lead

to a finding of heinous or depraved,"

State v. Wallace, 151 Ariz. 362, 367, 728

P.2d 232, 237-38 (1986) (emphasis added),

they as easily may not. In case after

case, they have not led to such a

- 60 -

finding.21 Moreover, the Arizona Supreme

3lin the following first-degree murder

decisions, among many others, “heinous and

depraved” findings were either reversed or not

made, although the Arizona Supreme Court

expressly found the highlighted Gretzler factor

present:

GRATUITOUS VIOLENCE. E£.¢..,

Ariz. 468, 469, 743 P.2d 1386, 1387 (1987)

(defendant killed victim with stab wound to neck,

then stabbed victim repeatedly in the back,

including one 15" gash; trial court found that

offense was not “heinous and depraved;" Mr.

Jeffers has lodged the unpublished sentencing

order in this case with the Court);

Smith, 138 Ariz. 79, 84-86, 673 P.2d 17, 22-24)

(1983) (defendant strangled rape victim, held her

down while codefendant stabbed her, then crushed

victim with rocks; "heinous and depraved" finding

reversed); State v, Richmond, 136 Ariz. 312, 315,

319, 666 P.2d 57, 60, 64 (1983) (defendant beat

robbery victim unconscious with fists, then

dropped “large rocks" on him, then drove a car

over the "helpless({]" victim's head and a second

time over his body, crushing both; “heinous and

depraved" finding reversed by majority of

concurring justices) ; State v. Blazak, 131 Ariz.

598, 600, 643 P.2d 694, 700 (1983) (defendant

shot bartender four times at close range during 4

robbery, then shot two nearby patrons, killing

one; “heinous and depraved" finding reversed) ;

, 125 Ariz. 201, 202, 608 P.2d

778, 779 (1980) (defendant shot victim four

times with an M-l carbine, “any one of which

[shots] could have been fatal in itself;"

"heinous and depraved" not found); State v.

Watson, 120 Ariz. at 447-48, 586 P.2d at 1259-60

(defendant shot victim four times, the fourth

while victim was lying on ground face down;

, 154

- 61 -

"heinous and depraved" findi

ng reversed).

generally decisions surveyed in Adamson v. =

Ricketts, 865 F.2d at 1038; Jeffers v. Ricketts

832 F.2d at 485. )

RELISHING THE KILLING: E.g., State v.

Rockwel], 161 Ariz. 5, 8 & n.2, 775 P.2d 1069

1072 & n.2, 1076 (1989) (after marching robbery

victim to filling station rest room at gunpoint

and making helpless victim kneel in front of the

toilet before being shot “execution-style,”

defendant "boasted" and “bragged” to friends

about the killing in order to "project{] a macho

image;" “heinous and depraved" not found by trial

court); State v. Graham, 135 Ariz. 209, 212, 660

P.2d 460, 463 (1983) ("to impress" his friends

defendant described how the robbery victim |

"‘squealed like a rabbit;’" "heinous and

depraved" finding reversed) [compare to Rockwell

= Sxehen: State v, Martinez-Villarea], 145

riz. 1, 450-51 & n.3, 702 P.2d 670, 679-80 &

n.3 (1985) ("heinous and depraved" finding

affirmed because, after killing the robbery

victim, defendant told a friend that the act

proved his “manliness” and “machismo:" statement

relied upon to uphold “heinous and depr-veu"

owes State v. R.L. Smith, 141 Ariz. 510,

11-12, 687 P.2d 1265, 1266-67 (1984) (defendant

“senseless([ly]" killed robbery victim who

“offered no resistance [and] ... backed away”

when defendant cocked trigger; afterward, "Smith

laughed and joked about the gurder:" “heinous and

depraved" finding reversed) (compare to R.L.

: State v. James, 141 Ariz. 141, 147

P.2d 1293, 1299 (1984) ("heinous and hommes”

finding affirmed because defendant laughed and

joked about robbery-murder afterwards)|; State v_

, 138 Ariz. 79, 85-86, 673 P.2d4 17, 23.

24 (1983) (facts also included in codefendant’s

case, State v. Lambright, 138 Ariz. 63, 66-67,

673 P.2d 1, 4-5 (1983)) (after admittedly raping

a kidnap victim “repeatedly,” strangling her,

holding her down while a codefendant stabbed her,

then crushing victim's head with rocks, defendant

"participate(d] in the macabre celebration of the

killing during which the group played the song

‘We Are the Champions;’* “heinous and depraved"

finding reversed); State v. Madsen, 125 Ariz.

346, 352-52, 609 P.2d 1046, 1052-53 (1980)

(after killing his wife and collecting the

insurance money, defendant told a friend envious

of his wealth, "It’s easy to get money, you just

blow someone away and collect the insurance;"

"heinous and depraved" finding reversed).

NEEDLESS MUTILATION: , -

138 Ariz. 370, 371-72, 674 P.2d 1368, 1369-70

(1983), and State v. Montes, 136 Ariz. 491, 492-

93, 498, 667 P.2d 191, 192-93, 198 (1983) (Cruz-

Mata, Montes and third defendant (Sapien) forced

victim, who had offered the three a ride, off the

road, robbed him, bound him, stabbed him 29

times, and cut off his genitals; “heinous and

depraved" not found in any of three cases;

sentencing orders and presentence reports in

three cases lodged with Court).

HELPLESSNESS: E.g., State v. B. Smith, 146,

Ariz. 491, 503-09, 707 P.2d 289, 301-02 (1985)

(robbery victim "helpless" when killed; “heinous

and depraved" finding reversed) ; State v. Poland,

144 Ariz. 388, 393, 698 P.2d 183, 188 (1985)

(unconscious victims sealed in canvas sacks

weighted with rocks and thrown into Lake Mead to

drown; “heinous and depraved" finding reversed) ;

State v. Brookover, 124 Ariz. at 39, 601 P.2d at

1323 (defendant shot robbery victim once; then

while victim was on floor asking for mercy,

defendant said “don’t worry, buddy, it'll be over

- 63 -

Court has insisted that there are

"(njumerous factors {that} can be

considered in making a finding of

depravity (which) include" the Gretzler

factors, but also include many other

factors bounded only by the requirement

that they be “such things as" the

Gretzler factors, or that they “in some

other way ... set [the defendant) apart

from the ‘norm’ of first degree

murderers," or that they likewise

soon,” and shot victim a second time: "hei

and depraved" finding reversed). / =

SENSELESSNESS OF THE KILLING. State v.

Johnson, 147 Ariz. 395, 397, 401, 710 P24 1050

1052, 1056 (1985) (defendant admitted he had no

reason to kill victim, who had put him and a

friend up in her home for two weeks, other than

that he felt like killing someone: “heinous and

a " finding reversed); State v. R.L. Smith

Supra ("“senselessness" found: “heinous and

yo ag wl finding reversed); State v. Richmond

aupra (same); State v. Lujan, 124 Ariz. 365, 3)

604 P.2d 629, 636 (1979) (same). ese dion

- 64 -

establish "additional aggravation.">?

As the en banc Court of Appeals found,

32state v, Villafuerte, 142 Ariz. 323, 331, 690

P.24 42, 50 (1984); State v. Summerlin. .1% Ariz.

426, 436, 675 P.2d 686, 696 (1984);

Johnson, 147 Ariz. 395, 401, 710 P.2d 1050, 1056

(1985); State v. B. Smith, 146 Ariz. 491, 503,

707 P.24 285, 301 (1985). Accord. e.g., State v.

Pulminante, 778 P.2d 602, 619, 620-21 (1988) (in

addition to dictionary definitions and Gretzler

factors, the court “has also” relied on other

factors, including a number listed here); State

, 168 Ariz. 468, 481, 715 P.2d 721, 734

(1986) ("In addition to the five factors

presented in Gretzler, we have also found that

depravity is indicated" by two additional factors

discussed here, including the factor that the

offense reveals “a total disregard for human

life"); State v. Gillies. 142 Ariz. 564, 570,

691 P.24 655, 661 (1984) ("The trial court found

two factors indicative of heinous and depraved:

1) the senselessness of the aurder (a Gretzler

factor) and 2) the savage sanner of death [not a

Gretzler factor]. We agree with both these

findings ... [and] believe elimination of wit-

nesses, as a motive for surder [not a Gretzler

factor], also illustrates heinousness and

depravity"); State v. James, 141 Ariz. 141, 147,

685 P.24 1293, 1299 (1984) (Gretzler factors are

"among others” considered) ; State v. McCall. 139

Ariz. 147, 161, 677 P.2d4 920, 934 (1983)

("(sleveral sorts of actions” support « "finding

of depraved or heinous"); State v. Gretzler, 135

Ariz. at 51, 659 P.2d4 at 10 (authorizing

consideration of *‘additional circumstances of

the nature enumerated (that) set the crime apart

from the usual or the norm’* (emphasis added;

citation omitted)).

without dissent, what counts in Arizona

is not the presence of any one of the

Gretzler factors, but rather that there

be “something” -- apparently anything --

“about the murder that sets it apart from

the norm." State v. Zaragoza, 135 Ariz.

63, 69, 659 P.2d 22, 28 (1983). Some

things will do as well. For often in

Arizona it is under "the totality of the

circumstances [that] the finding of

depravity ... (is) sustained." state v.

Villafuerte, 142 Ariz. 323, 331, 690 P.2a

42, 50 (1984).33

33the

al court, for example, has premised "heinous

depraved" findings on “the totality of the

circumstances of [the] killings,” State v. Ceja

126 Ariz. 35, 39, 612 P.24 491, 495 (1980). "the

entire nature of the attack,” |, —Roscoe

145 Ariz. 212, 226, 700 P.24 1312, 1326 (1985),

society's view of the surder as compared to

= murders,” State v. Ortiz, 131 Ariz. 195.

, 639 P.24 1020, 1031 (1982), “the facts of

thle) ease [that] set it ‘apart from the

norm(),’" State vy. Gretzler, 135 Ariz. at 53, 659

P.26 at 12, and any other group of

circumstances’* that the court finds *'so

shocking or repugnant that the murder stands

Under Gretzler’s open-ended authori-

zation to identify new factors as each

new case comes along and to apply the new

factors retroactively in that case, cf.

Teague v. Lane, 109 S. Ct. 1060, 1069-70,

1072-75 (1989) (plurality opinion), the

Arizona Supreme Court has expanded

Gretzler’s list of five to include, among

the other factors surveyed in Appendix B

that the defendant: eschewed a “less

violent" means of killing (to wit, a

pistol) that was “readily available,”

State v. Wallace, 151 Ariz. at 368, 728

p.24 at 238;24 lay in wait, id.;?> showed

out,’" State v. Gillies, 135 Ariz. 500, 515, 662

P.2d 1007, 1022 (1983) (citation omitted).

*“Compare , 446 U.S. at 433

n.16 ("it is constitutionally irrelevant that

the petitioner used a shotgun instead of a rifle

as the mgurder weapon, resulting in a gruesome

spectacle in his sother-in-law’s trailer").

ISput see State vy. Arnett, 119 Ariz. 38, 41-42,

579 P.2d 542, 545-46 (1978) (defendant “lay in

wait" for victim; “heinous and depraved"

———

- 67 -

no “compassion or remorse," State v.

James, 141 Ariz. 141, 147, 685 P.2d 1293,

1299 (1984);9© "could have accomplished

whatever criminal goals he desired

without killing” the victim, State v.

Zaragoza, 135 Ariz. at 69, 659 P.2d at

28; eliminated witnesses to an

accompanying felony, e.g., State v.

Correll], 148 Ariz. 468, 481, 715 P.2d

721, 734 (1986);37 killed someone who was

circumstance not found by trial court).

36

State v. Carriger, 143 Ariz. 142. 16?

692 P.2d 991, 1011 (1984) ("1f (defendant)

chooses not to ... admit his guilt, that is

irrelevant to a sentencing determination").

37

State vy. B.D. Smith,

86, 673 P.2d 17, 22-24 (1983) cme aor,

uncontradicted evidence before the judge

including Smith’s own statements, established

that the reason for the killing was to prevent

[ the vietia) from pressing charges of kidnapping

and rape;" “heinous and depraved" finding

gy State vy. Hensley, 142 Ariz. 598, 602.

= 1 P.24 698, 693, 695 (1984) (defendant

op = a ne persons present at robbery

etsasssser" “Setares and’ epeenst flemas =

+ depraved" finding

old, young, female, his mother, or had

displayed “generosity and concern” for

the defendant;?® acted "totally without

regard for human life" or “for the

fundamental principles upon which our

society is based," State v. Wallace, 160

Ariz. 424, 428, 773 P.2d 983, 987 (1989);

38scate v. Zaragoza, 135 Ariz. 63, 69-70, 659

P.2d4 22, 28-29 (1983) (elderly victim); State v.

Roscoe, 145 Ariz. 212, 226, 700 P.2d 1312, 1326

(1984) (young victim); State v. Summerlin, 158

Ariz. 426, 436, 675 P.2d 686, 696 (1983) (female

victim, neither young nor old; “heinous” finding

affirmed because case otherwise resembled

Zaragoza, supra and Roscoe, supra); State v.

Moorman, 154 Ariz. 578, 587, 744 P.2d 679, 688

(1987) ("matricide” per ge “above the nore of

first-degree murder"); State vy. Fisher, 141 Ariz.

227, 252, 686 P.2d 750, 775 (1984) (victim showed

defendant compassion). But see ;

129 Ariz. 557, 573-74, 633 P.2d 366, 382-83

(1981) (victim 74 years old; “heinous and

depraved” not found by trial court); State vy.

Girdler, 138 Ariz. 482, 484, 675 P.24 1301, 1305,

(1983) (defendant burned young child to death;

"heinous and depraved" not found); State yv.

Johnson, 147 Ariz. 395, 397, 401, 710 P.2d 1050,

1052, 1056 (1985) (defendant, admittedly for no

reason other than that he felt like killing

someone, shot and killed a childhood friend who

had been providing hie with a place to stay for

weeks: “heinous and depraved" finding reversed) .

State v. Martinez-Villareal, 145 Ariz.

441, 451, 702 P.2d 670, 680 (1985); and

“violated the special parental relation-

ship,” State v. Fulminante, 778 P.2d 602,

621 (Ariz. 1989); and the Arizona Supreme

Court also has affirmed “heinous and

depraved" findings because the killing

was “cold-blooded,” State v. R.L. Smith

141 Ariz. 510, 512, 687 P.2d 1265, 1267

(1984) ;99 "savage," State v. Gillies, 142

Ariz. 564, 570, 691 P.2d 655, 661 (1984);

“ghastly,” State v. Knapp, 114 Ariz. at

39

State vy. B. Smith, 146 Ariz.

707 P24 289, 302 (1985) ("That defendanc's

actions may have been cold and deliberate

demonstrates not heinousness or depravity but

intent;" “heinous and depraved" finding

reversed); State v. Madsen, 125 Ariz. 246, 247

48, 252, 609 P.24 1046, 1047-48, 1052 (1980)

(aurder of wife with gun she had just helped his

site, thinking they were engaging in target

practice, followed by defendant's statement

nT yk me Aye collection of

was “cold-blooded; *

depraved" finding reversed) . oe on

- 70 -

543, 562 P.24 at 716;*° and "repugnant to

a civilized society," State vy. Beaty, 158

Ariz. 232, 243, 762 P.2d@ 519, 530 (1988)

(citation omitted). See Adamson v.

Ricketts, 865 F.2d at 1034-35 (citing

numerous exemplary cases) (the “pos-

sibilities appear endless").*! In short,

although the Arizona Supreme Court has

said that numerous factors “can support

this aggravating circumstance, ... the

court has refused to hold that any one of

those factors gust be present for a

murder to satisfy (the) ... circumstance.

. 136 ariz. 312, 323,

666 P.2¢ 57, 68 (1983) (Cameron, J., concurring,

in opinion joined by sajority of court) ( It is

true that [the eurder) ... was ghastly;

"heinous and depraved" finding reversed) .

“Saccord Rosen, The “Eapecially Heinous” =

N.C.L. Rev. 941, 981 (1986) (comprehensive review

of Arizona’s “heinous ... or depraved" cases,

concluding thet, *|w)henever about a

murder has proved offensive to the (Arizona)

court... it hes approved (the) especially

heinous [faector)*).

- 7Jl-}-

The underlying position of the ... court

appears to be that it can simply review

the circumstances of the murder and

divine whether the murder was

“especially heinous ....’" Cartwright v.

Maynard, 822 F.2d at 1491 (emphasis

added) (quoted in part in Maynard v.

Cartwright, 108 Ss. ct. at 1857).

The result of "such an open-ended

construction," Gregg v. Georgia, 428 U.S.

at 201, is not hard to predict: “within

the plethora of factors the Arizona

courts may consider there has been much

contradiction and inconsistency in the

application of the (F)(6) circumstance

+++ Plainly demonstrat[{ing) that the ...

circumstance has been applied in an

arbitrary and capricious manner in

violation of the most basic principles of

death penalty jurisprudence." Adamson v.

Ricketts, 865 F.2d at 1037-38 (surveying

- 72-

50 Arizona cases). See, @.g., decisions

cited supra notes 31, 35-40 and

accompanying text. As the Court of

Appeals concluded in this case, based on

its own comparison of Arizona cases,

"“Arizona’s existing standard ... for

murder committed in an ‘especially

heinous ... or depraved manner,’” has

"los(t] its ability to distinguish in a

principled manner between those it

condemns to death and those it does not.”

832 F.2d at 486. See id. at 484-85.

Compare Cartwright v. Maynard, 822 F.2d

at 1490.

The Court of Appeals’ comprehensive

analysis of the Arizona cases more than

amply documents that Arizona’s

construction of the “heinous ...

depraved" circumstance has replicated the

"major systemic defects identified in

Furman." Pulley v. Harris, 465 U.S. at

- 73 <-

54. In word as well as result, that

construction provides "no meaningful

basis for distinguishing the few cases in

which (death) is imposed from the many

cases in which it is not." Furman v.

Georgia, 408 U.S. at 313 (White, J.,

concurring).

Because this Court has "plainly

rejected the submission that a particular

set of facts surrounding a murder,

however shocking they might be, {are}

enough in themselves, and without some

narrowing principle to apply to those

facts, to warrant the imposition of the

death penalty," Maynard v. Cartwright,

108 S. Ct. at 1859, no further analysis

is necessary to invalidate Mr. Jeffers’

death sentence.

’

ee

Jeffers’ Case Runs Afoul of the

Eighth Amendment Rule of Godfrey

Even if the Arizona courts had

maintained a constitutional construction

of the “especially heinous ... or

depraved" aggravating circumstance, they

applied no such construction in Mr.

Jeffers’ case. Accordingly, his death

sentence violates the constitutional rule

of Godfrey v. Georgia. "(I}n light of

the facts and circumstances of the

murder({] that [the defendant) was

convicted of committing," the state

courts cannot "be said to have applied in

this case a constitutional construction"

of the “especially heinous ... or

depraved" circumstance. Godfrey Vv.

Georgia, 446 U.S. at 432.

The facts of Mr. Jeffers’ case, like

those of Godfrey, fall within no such

- 75 «-

construction supplied by state law. As

found by the state courts, those facts do

show that Mr. Jeffers formed an unlawful

intention, borne of years of domestic

strife, voluntary substance abuse, and

the victim’s having informed the

authorities about his illegal activities,

to kill Penelope Cheney, compare Godfrey

Vv. Georgia, 446 U.S. at 424 & n.3; and

that he premeditated and carried out that

intention in the full flowering of his

anger, not only deliberately (though

painlessly) killing Ms. Cheney, but also

cursing her and hitting her “with his

hands about the face four or five times"

after she died. J.A. 13-14. Swe J.A.

18-19. Much as Mr. Godfrey told the

police moments after killing his wife and

mother-in-law with shotgun blasts to the

head (in between which he "took out time

not only to strike his daughter on the

- 76-

head (with the barrel of his gun), but

also to reload his single-shot shotgun"),

Mr. Jeffers “committed a hideous crime"

that he had thought “about ... for [some

time)." Godfrey v. Georgia, 446 U.S. at

425-26; id. at 449 (White, J.,

dissenting). Like Mr. Godfrey, Mr.

Jeffers was found guilty of “the unjus-

tified, intentional taking of human

life." Maynard v. Cartwright, 108 S. ct.

at 1859. But these facts do not

"differentiate this case in an objective,

evenhanded, and substantively rational

way from the many ...- murder cases in

which the death penalty may not be

imposed," Zant v. Stephens, 462 U.S. at

879.

At the time of both of Mr. Jeffers’

sentencing proceedings, in the spring of

1978 and the summer of 1980, the only

Arizona Supreme Court guides to the

meaning of the “especially heinous ... or

depraved" circumstance were the

dictionary definitions that State v.

Knapp had quoted from Webster’s Third New

International Dictionary: "*heinous’*

means “‘hatefully or shockingly evil:

grossly bad’" and “‘depraved’" means

“‘marked by debasement, corruption,

perversion or deterioration.’*

114 Ariz. at 543, 562 P.2d at 716. As a

Godfrey, the sentencer here was

instructed exclusively "in the words of

the statute" and in a series of

“excessively vague" and "highly

subjective" synonyms. Maynard v.

Cartwright, 108 S. ct. at 1858; Califor-

nia vy. Ramos, 463 U.S. 992, 1000 n.12

(1983); Zant v. Stephens, 462 U.S. at a7s

(all discussing Godfrey). The State’s

submission to the trial court was -- as

it has remained in every court including

this one -- simply that the “totality of

the circumstances" controlled;*? and it

was those circumstances, in their

totality, that the trial court gave as

the only explanation of its finding that

"the defendant committed the offense of

first degree murder in an especially

heinous, cruel and depraved manner.”

J.A. 13-14 (quoted gupra pp. 6-7)- See

J.A. 60-61. Precisely as in Godfrey and

4“lyithout iterating a standard, the State's

presentencing submissions merely referred the

sentencer to a number of circumstances of the

case, such as Mr. Jeffers’ initiation of the

fatal acts, his injection of sore heroin than

“necessary to kill the victia, * his "cussing"

and “swearing at the body” and *verbalizations of

hate" towards the victia, his “needless and

senseless” actions, the victia’s “resistless”

condition, the “brutality exhibited in disposal

and interment," Mr. Jeffers’ “aacabre and heinous

propensities,” his failure to confess, his

"shockingly evil conduct,” and the “evidence

of a cruel and depraved mental state.” July 10,

1980 T. 189: State’s June 5, 1980 Resentencing

Memorandum, et 2-3. See alag Stete’s Dec. 16,

1980 Answering Brief on Appeal (Resentencing

Only), at 20-21 (arguing that **cotality of

circumstances’* controls). See alag Petitioner”s

Brief in this Court, et 15-17.

Maynard, therefore, there was "nothing in

th(e) few words" of the statute or in

"the events recited by" the trial court

to constrain “the unfettered discretion

of the (sentencer) and to satisfy the

commands of the Eighth Amendment.”

Godfrey v. Georgia, 446 U.S. at 428;

Maynard vy. Cartwright, 108 S. ct. at

1859.43

Nor was the “standardless and

unchanneled imposition of [a] death

sentence() in the uncontrolled discretion

of a basically uninstructed" sentencer

43th Arizona Supreme Court itself documented the

——— s overbroad approach to aggravating

circumstances, concluding that the trial court

(1) improperly “stretch(ed) the statute to

extreme length” in finding the “grave risk of

—_ to another person” circumstance; (2) erred

iading cruelty” although it was “not proven”

—— whe victis experienced no pain or menta!

fering;" and (3) relied “largely” on “acts

which occurred after the victia’s death” and

which the high court refused to endorse as proper

bases for an * fall .

57-62. especially heinous" finding. JA

“cured by the affirmance of th(at)

sentence({) by the state Supreme Court.”

Godfrey vy. Georgia, 446 U.S. at 429. For

the Arizona Supreme Court did in

microcosm in Mr. Jeffers’ case what the

en banc Court of Appeals in Adamson

concluded has been done in macrocosm in

construing and applying the “especially

heinous ... or depraved" circumstance in

all other post-Gretzler cases. Reviewing

the totality of the circumstances in such

light as was shed by the "dictionary

definitions of the (statutory) words

used" (J.A. 60) and asking only "that the

murder be ... especially depraved" (J.A.

63) (emphasis in original), the Court

affirmed the (F)(6) finding in Mr.

Jeffers’ case upon concluding that it

could identify factors in the case that

somehow “distinguished the surder() from

the ‘usual or the norm’ of first degree

- 61 -

murders." J.A. 62. See J.A. 64.

Although the Arizona Supreme Court

recited a number of factors (gee J.A. at

60-61), it focused on two -- the same two

factors noted above by means of which the

jury, sentencer, and supreme court

rightfully concluded that the surder of

Ms. Cheney was unjustified, premeditated,

and first degree: After the victim

apparently had died, Mr. Jeffers swore at

her and hit her on the head with his

hands four or five times, reciting the

names of his associates who were arrested

after Ms. Cheney spoke to the police.

J.A. 61, 63. §ee algo Jeffers vy.

Ricketts, 627 F. Supp. at 1342. The

court dressed up those facts in the

language of two of the Gretzler factors

~~ “relish” because Mr. Jeffers swore at

the victim and verbalized his motive for

killing her, and “gratuitous violence"

because of the four or five slaps. But

motivation, premeditation, and

deliberation is all that these factors

reveal. Wo more than Godfrey’s sultipile

shotgun blasts, the blow Godfrey

delivered to his daughter’s head with his

gun, and Godfrey’s statements about

contemplating the killing for years and

being prepared to “do it again,” can Mr.

Jeffers’ actions “be said to have

reflected a consciousness materially sore

‘depraved’ than that of any person guilty

of (first-degree) surder," so as to

provide a “principled way to distinguish

this case, in which the death penalty was

imposed, from the sany cases in which it

was not." Godfrey vy. Georgia, 446 U.S.

at 433.

The aptness of Godfrey's “no principled

way" conclusion as a description of what

transpired in Mr. Jeffers’ case is

- 63 -

illustrated in two ways, as the court

below concluded. First, the equation in

Mr. Jeffers’ case of the "relish" and

“gratuitous violence" factors with a

defendant’s verbal and physical

expressions of the sotivations

precipitating his homicidal deliberation

and action departed from any "core"

meaning the two factors once may have

had. Second, that equation also departs

from the analysis and results in numerous

first-degree surder cases in which no

“heinous ... or depraved" finding was

made or, if made, was reversed

notwithstanding far more "relish" and

post-mortem violence than Mr. Jeffers

exhibited.

If an’ "core" principle can be

discerned as giving shape to Gretzler’s

concept of “relish,* it is a requirement

of actions or verbalizations, distinct

from those constituting or revealing the

actus and gens rea during the commission

of the homicide itself, that manifest an

after-the-fact expression of the

defendant’s enjoyment of killing for its

own sake. State vy. Gretaler, 135 Ariz.

at 52, 659 P.2¢ at 11 (quoting gtate v.

Clark, 126 Ariz. 428, 437, 616 P.2a 888,

897 (1980)) ("we found a depraved state

of mind where defendant surdered four

people and then ‘kept a spent bullet as a

grisly souvenir of his crime’*).** In

contrast to every other case in which

““see also . 146 aria. 359, 365,

706 P.2e¢ 371, 377 (1985S) (defendant kept

“souvenic® ef crime); State vy. Gerlaugh.

Ariz. 449, 454, 696 P.2¢ 694, 699 (1985)

(Gefentent Loser Lihened the billing te

(ing) game"), Gtate vy. Gillies.

364, a 571 eet P. P.24 655, 661-62 (1984) (defendant

later joked about the killing); diate y.

. 138 aria. 63, 67, 75, 673 P.2e 1, 5,

1} (1983) (¢efendant leter “engaged tn « eecabre

celebration of the killing” end kept « “semento

from it); State ¥. Vickers. 129 Ariz. 506, 509,

633 P.24 315, 318 (1981) (defendant told

reporter he enjoys killing).

144

- 85 -

the Arizona Supreme Court has found

“relish,” however, Mr. Jeffers’ case

exhibits no such expressions either after

the homicidai acts or in reference to

killing anyone besides Ms. Cheney. The

"relish" concept cannot be expanded to

reach Mr. Jeffers’ contemporaneous

expressions of the motivation that led

him to commit the homicide itself without

losing all capacity to differentiate his

case, in which "heinousness" was found

and the death penalty imposed, from the

many Arizona cases in which that did not

occur notwithstanding contemporaneous and

even after-the-fact expressions of

premeditation, motivation, and even

homicidal pleasure in general going far

beyond anything of which Mr. Jeffers can

be accused. 45

“Scompare, e.g., State v. Carr, 154 Ariz. 468,

469, 743 P.2d 1386, 1387 (1987) (defendant

slashed victim’s neck and repeatedly stabbed

victim, saying as he did so, “‘that will teach

you;’" trial court found that offense was not

"heinous and depraved;" sentencing order lodged

with Court); State v. Kinkade, 147 Ariz. 250,

252, 709 P.2d 884, 886 (1985) (defendant lured

victim who owed defendant money on a gambling

debt to the desert where he shot the victim three

times in the back of the head, pulled the dead

victim out of the car, and shot the victim a

fourth time, saying, "'So, you like to gamble,

huh, fucker?;’" trial court found that offense

was not “heinous and depraved;" sentencing order

lodged with Court); State v. Vaughn, 147 Ariz.

28, 28-29, 708 P.2d 453, 453-54 (1985) (defendant

bragged to accomplice driving getaway car as they

left the scene that he forced the gas station

attendant into the rest room, made him kneel,

ordered him to beg for his life, then shot him

execution-style; trial court found that offense

was not “heinous or depraved;" sentencing order

lodged with Court); State v. Madsen, 125 Ariz.

346, 347-48, 353, 609 P.2d 1046, 1048, 1053

(1980) (after defendant lured his estranged wife

to desert on target-shooting pretext, he shot

her, commenting, “there, that’s done;" later

defendant told a friend, "It’s easy to get money,

you just blow someone away and collect the

insurance;"” “heinous and depraved" finding

reversed); State v. Brookover, 124 Ariz. at 39,

601 P.2d at 1323-24 (1979) (defendant shot drug

dealer in other dealers’ presence to convince

latter he was a “heavyweight;" after firing first

shot, following which the prone victim pleaded

for his life, defendant said, “‘don't worry,

buddy, it'll be over soon’* and shot him a second

A like conclusion pertains to the

"gratuitous violence" factor. If

Gretzler can be said to have given that

phrase any content at all, it was by

referring to a "‘barrage of violence’"

against the victim made up of numerous

shots or blows, “each of which," as the

court elsewhere has required, “would have

time; “heinous and depraved" finding reversed) .

See also State v. Graham, 135 Ariz. 209, 212, 660

P.2d 460, 463 (1983) (to “impress” his friends,

the smiling defendant described the victim's

reaction to being shot as "‘squeal[ing} like a

rabbit;’" “heinous and depraved" finding

reversed); State v. Rockwell], 161 Ariz. 5, 8 &

n.2, 9-10, 775 P.2d 1069, 1072 & n.2, 1073-79

(1989) (defendant "boasted" and “bragged” to

friends and relatives about "execution-style"

robbery-killing to “project(] a macho image;”"

"heinous and depraved" not found by trial court).

State vy. B.L. Smith, 141 Ariz. 510, 511-12, 687

P.2d 1265, 1266-67 (1984) (defendant “laughed and

joked about the surder” afterward; “heinous and

depraved" reversed); State v. Lamb, 142 Ariz.

463, 467, 690 P.2d 764, 768 (1984) (defendant

bragged to friend after bludgeoning two robbery-

murder victims to death with a two-by-four, that

"you can get away with gurder in Phoenix;" no

“heinous and depraved" finding reported). See

decisions reviewed in Adamson v.

Ricketts, 865 F.2d at 1037-38; Jeffers v.

Ricketts, 832 F.2d at 484-85.

been fatal in itself."*®© Yet the facts

found in this case, unlike those found in

every other case in which the Arizona

Supreme Court has relied upon the factor,

reflect nothing like a “barrage” of

potentially homicidal post-mortem

violence. Nor can the "gratuitous

violence" factor be enlarged, as it was

in Mr. Jeffers’ case, to any increment of

violence beyond that medically sufficient

to kill, without destroying the concept’s

capacity to distinguish “heinous” and

“6state vy. Gretzler, 135 Ariz. at 52, 659 P.2d at

ll (quoting State vy. Ceja, 126 Ariz. 35, 612

P.2d 491, 493-96 (1980) and State v. Ceja, 115

Ariz. 413, 414, 565 P.2d4 1274, 1277-78 (1977)

(multiple potentially fatal shots to multiple

victims)); State vy. Fisher, 141 Ariz. 227, 252,

686 P.2d 750, 775 (1984) (emphasis added). See,

e.g.,. State v. LeGrand, 153 Ariz. 21, 36, 734

P.2d 563, 578 (1987) (multiple stab wounds, "five

[of which] would have immediately killed" the

victim); State vy. Gerlaugh, 144 Ariz. 449, 454,

698 P.2d 694, 699 (1985) (multiple attacks

"caused several injuries, any of which would have

been fatal"); State vy. McCall, 139 Ariz. 147,

162, 677 P.24 920, 935 (1983) (multiple attacks,

each “potentially fatal").

"non-heinous," death and life, cases in

Arizona on the basis of a recognizable

principle.‘47

47 , 154, Ariz. 468,

469, 743 P.2d 1386, 1387 (1987) (defendant killed

victim with stab wound to neck, then stabbed

victim repeatedly in the back, including one 15"

wound; trial court found that offense was not

“heinous and depraved;" sentencing order lodged

with Court); State vy. Kinkade, 147 Ariz. 250,

252, 709 P.2d 884, 886 (1985) (defendant shot

victim in back of head at point-blank range three

times, then pulled dead victim out of the car and

shot hia — trial court found that offense

was not “heinous and depraved;" sentencing order

lodged with Court), State v. B.D. Saith, 138

Ariz. 79, 85-86, 673 P.24 17, 22-24 (1983)

(defendant strangled rape victim, held her while

codefendant stabbed her, then crushed victim with

rocks; “heinous and depraved" finding reversed);

State vy. Richmond, 136 Ariz. 312, 315, 319, 666

P.2d 57, 60, 64 (Ariz. 1983) (defendant beat

robbery victim unconscious with fists, dropped

“large rocks" on him, drove car over *helpless| |”

victim's head, crushing the skull, then drove the

car over the victim's body, crushing it; "heinous

and depraved" finding reversed by majority of

concurring justices); State v. Blazak, 131 Ariz

598, 602, 643 P.2d 694, 700 (1983) (defendant

shot bartender four times at close range during

robbery then shot two nearby patrons, killing

one; “heinous and depraved" finding reversed).

State vy. Watson, 120 Ariz. 441, 448, 586 P24

1253, 1260 (1978) (defendant shot victia four

times, the last time after victim was lying face

down on floor; “heinous and depraved" finding

reversed); State vy. Armett, 119 Ariz. 38, 41-42.

On this record, one of three con-

clusions must be reached: Either the

terms "relish" and “gratuitous violence"

have no “core” meaning at all beyond the

premeditation and unjustifiability that

characterize all first degree murders; or

the Arizona Supreme Court departed in Mr.

Jeffers’ case from whatever “‘objective’"

and *‘rationally reviewable’" meaning one

might possibly ascribe to those terms;

or that the court considers those charac-

teristics merely relevant, but not

decisive for a “heinous and depraved"

finding, and that it is the totality of

circumstances that, subjectively,

48, 579 P.2d 542, 545-46, 552 (1978) (defendant

lay in wait for robbery victia then shot his five

times with an M-1 carbine, “any one of which

{shots} could have beer fatal in itself;*

“heinous and depraved" not found). {See generally

decisions surveyed in Adamson vy. Ricketts, 865

F.2d at 1037-38; Jeffera vy. Ricketts, 832 F.2d at

484-85.

controls. Through whichever cause, the

terms “relish” and “gratuitous violence,"

at least as applied in this case, lost

the “ability to distinguigh in a

principled manner between those [whom

Arizona) condemns to death and those it

does not," Jeffers v. Ricketts, 832 F.2d

at 486.

Itt. ARIZONA’S EFFORTS TO AVOID THE

CLEAR DICTATES OF MAYNARD AND

GODFREY BY CREATING A SPURIOUS

“STANDARD OF REVIEW" ISSUE ARE

UNAVAILING

The State seeks to portray this case as

one that resolves into three questions:

(1) Is there a state-law "rule" according

to which the “especially heinous ... co:

depraved" circumstance is applied? (2)

If so, is that "rule" constitutionally

valid? (3) If so, is the instant case

within that "rule?" Petitioner’s Brief,

at 10-12. See algo Brief Amicus Curiae

- 92 -

of the Criminal Justice Legal Foundation,

at 4-8. The State contends that question

number (2) is not_open to Mr. Jeffers in

this Court and that question number (3)

can be governed by no stricter “standard

of review" than a “rational factfinder"

test.

This framing of the issues is

manifestly driven by the necessary

concession that the State’s second

question -- the so-called Maynard-Adamson

question -- is a pure question of federal

law, which the federal courts on

certiorari or habeas corpus are obliged

to review de novo. Petitioner’s Brief,

at 7, 10-11. See also Brief Amicus

Curiae of the Criminal Justice Legal

Foundation, at 9-10. The State’s

"standard of review" argument, advanced

as the sole basis for reversal of the

Ninth Circuit’s judgment, does not even

- 93 -

purport to take issue with that judgment

insofar as the judgment was rendered or

is sustainable under a Maynard-Adamson

analysis. The unavoidability of the

State’s conceding this point explains its

unsuccessful contortions in an effort

first, to excise the Maynard-Adamson

analysis from the panel opinion below,

then to obscure the panel’s and the en

banc Court of Appeals’ denial of

rehearing in the light of Adamson, and

finally to divert this Court from its

longstanding rule permitting the

prevailing party below to "defend a

judgment on any ground which the law and

record permit that would not expand the

relief granted." United States v. New

York Telephone Co., 434 U.S. 159, 166 n.8

(1977). Given the role that the Maynard-

Adamson analysis actually played in both

the original and rehearing proceedings in

- 94 -

Mr. Jeffers’ case and the clear

availability of that analysis for

defending the Ninth Circuit’s judgment in

this Court irrespective of the exact

ground of decision below, the State’s

inescapable concession with regard to its

so-called second question provides

sufficient basis for dismissal of

certiorari or affirmance of the Ninth

Circuit without more. See supra note

14.

In any event, Arizona only succeeds in

stating its third question as one on

which deference is due to the state

courts by a verbal sleight of hand,

namely, by using the singular “rule” to

refer to what in fact is two rules, one

arising under state law and the other

under federal law. In Arizona, as we

have shown in Part I supra, the same

verbal formulation -- that is, the same

- 95 -

statutory aggravating circumstance --

serves both the state-law function of

justifying a death sentence, and the

"constitutionally necessary" federal

function of "‘genuinely narrow[{ing] the

Class of persons eligible for the death

penalty and ... reasonably justify[ing}

the imposition of a more severe sentence

on the defendant compared to others found

guilty of murder.’" Lowenfield v. Phelps,

108 S. Ct. at 554 (quoting Zant v.

Stephens, 462 U.S. at 876-77)). Once

these two functions are separated, the

distinctness of the standard of federal

review appropriate to each becomes clear,

as does the pernicious and unprecedented

nature of the State’s attempt to conflate

the two standards. For, while it is true

that a state court’s "especially heinous

+++ Or dad praved" finding, insofar as it

is a matter of state law, is reviewable

- 96 -

by the federal courts only under the

"rational factfinder" rule of Jackson v.

Virginia, 443 U.S. 307, 313, 324

(1979) ,48 a different standard of review

48 jackson rovides the appropriate standard of

review en -- as in the cases the State cites as

supposedly in conflict with the decision below --

the sole issue is whether the State has adduced

sufficient evidence to convince a rational

factfinder beyond a reasonable doubt of the

defendant’s eligibility for death under an

aggravating circumstance or other statutory

provision that either has "no part to play in the

constitutionally required narrowing process

(Lowenfield v, Phelps, 108 S. Ct. at 555; e.g.,

Barclay v, Florida, 463 U.S. at 967-69 & n.16

(Stevens, J., concurring)) or has been authorita-

tively narrowed so as routinely to serve its

federal role (e.g., Barclay v. Florida, 463 U.S.

at 947-48 & nn.4, 5 (plurality opinion)). See

Magwood v, Smith, 791 F.2d 1438, 1441, 1447-50

(llth Cir. 1986), cert, denied, 110 S. Ct. 291

(1989) ("clear error” test applied in reviewing

state trial court’s rejection of two mitigating

factors, neither of them subject to constitu-

tional challenge); Ford v. Strickland, 696 F.2d

804, 819 (llth Cir.) (en bane), cert, denied, 464

U.S. 865 (1983) (limited federal review when

petitioner “contends that under Florida case law,

the court should have set aside two aggravating

circumstances" specified in a "properly drawn

statute with appropriate standards to guide

discretion” (emphasis added)). See also Godfrey

v, Georgia, 446 U.S. at 451, 454-56 (White, J.,

dissenting) (only upon concluding that the

aggravating circumstance was not “assailable on

- 97 -

is applicable when the "especially

heinous ... or depraved" formulation is

used by the State to satisfy the distinct

"fundamental constitutional requirement"

(Maynard v. Cartwright, 108 S. Ct. at

1858) of providing "an objective,

constitutional grounds" or "aberration([ally]”"

applied does opinion review the finding of that

circumstance under a "rational factfinder"

standard). The “rational factfinder" analysis

governs most aggravating circumstance determina-

tions, for most aggravating circumstances on

their face clearly and concretely perform the

constitutionally required limiting and channel -

ing function. See Godfrey v, Georgia, 446 U.S.

at 423 n.2 (distinguishing “especially heinous"

cognate at issue there from all other aggravating

circumstances in the Georgia statute which "are

considerably more specific or objectively measur-

able"). Review of the sort discussed in Part II

Supra, accordingly is reserved for, the few

statutory "narrowing" devices such as Arizona's

“especially heinous ... or depraved” clause that

on their face are "so broad that [they] may ...

vitiate(]) the role of the aggravating circum-

stance in guiding the sentencing discretion,”

McCleskey v, Kemp, 481 U.S. 279, 305 (1987), and

"so vague that they would fail adequately to

channel ... sentencing patterns ... with the

result that a pattern of arbitrary and capricious

sentencing like that found unconstitutional in

Furman could occur,” Gregg v, Georgia, 428 U.S.

act 195 n.46 (opinion of Stewart, Powell and

Stevens, JJ.).

- 98 -

evenhanded, and substantively rational

way" of distinguishing Mr. Jeffers’ case

from the many first degree murder cases

in Arizona in which death sentences have

not been imposed. Zant v. Stephens, 462

U.S. at 879. Because the latter

requirement is a federal constitutional

requirement, the question of the State’s

compliance with it -- the Godfrey

question -- is subject to the same

independent federal constitutional review

as the Maynard-Adamson question with

regard to which the State concedes the

point.

Not only in Godfrey and Maynard but in

numerous analogous cases, this Court has

confronted "rules" that serve dual state

and federal functions and has carefully

avoided letting its deference to a state

court’s conclusion with regard to the

rule’s service of a state-law function

- 99 =

interfere with the Court’s own

independent review of the rule’s capacity

under the facts and circumstances of the

case to serve its federal constitutional

function. For example, a state court’s

ruling that a custodial confession is

"voluntary," in keeping with the various

evidentiary functions that the state’s

voluntariness rule serves, has never led

this Court to defer to that ruling in

determining whether the manner in which

the confession was obtained serves the

functions of the similarly christened,

but not always similarly conceived,

voluntariness rule under the Fifth and

Fourteenth Amendments. For, as the Court

frequently has remarked in that context,

“we cannot avoid our responsibilities by

permitting ourselves to be ‘completely

bound by state court determination of any

issue essential to decision of a claim of

- 100 -

federal right, else federal law could be

frustrated ....’" Haynes v. Washington,

373 U.S. 503, 515-16 (1963) (quoting

Stein v. New York, 346 U.S. 156, 181

(1953)). “Without exception," therefore,

the Court’s confession cases hold that

the ultimate issue of ‘voluntariness’ is

a legal question requiring independent

federal determination. ... As early as

1978, the Court reaffirmed that it was

‘not bound by’ a state~-court

voluntariness finding and reiterated its

historic ‘duty to make an independent

evaluation of the [issue}.’" Miller v.

Fenton, 474 U.S. 104, 110 (1985) (quoting

Mincey v. Arizona, 437 U.S. 385, 398

(1978)).49

49see also Jackson v. Denno, 378 U.S. 368, 386-87

1964) (States are free to use juries to

pHs Ah ne Paine di in service of the state-

law functions of the voluntariness rule, — are

required initially to use judges to deters ne

voluntariness in order to serve the rule’s

- 101 -

Examples of this principle abound.

Manifestly, what for state-law purposes

may sufficiently constitute "probable

federal constitutional functions) ; Rogers v.

Richmond, 365 U.S. 534, 547 (1961) (Court will

not defer to historical facts found in the

process of a state voluntariness determination if

the function of the state-law rule differs

substantially from the functions of the federal

voluntariness requirement, because "(hjistorical

facts ‘found’ in the perspective framed by an

erroneous legal standard cannot plausibly be

expected to furnish the basis for correct

conclusion if and merely because a correct

standard is later applied to them"). In this

case, unlike in Rogers v, Richmond, supra, no

questions of historical fact arise. Rather, the

concepts that the issue presented here call upon

the Court to apply -- whether "the narrowing

function required for a regime of capital punish-

ment" has been served, and whether the

“heinousness" aggravating circumstance provides

"‘clear and objective standards, '" "‘specific and

detailed guidance,’" a "*rationally reviewable

[capital sentencing) process,’" and "‘a

meaningful basis for distinguishing the few cases

in which [the penalty] is imposed from the many

cases in which it is not,’* Lewenfield v. Phelps.

108 S$. Ct. at 555; Godfrey v, Georgia, 446 US.

at 427-28 (citations omitted) -- all are

manifestly legal] standards that “can be given

meaning" by this Court “only through its

application [of those standards} to the

particular circumstances of a case," hence as to

which the Court’s review must be plenary. Miller

vy. Fenton, 474 U.S. at 114.

: - 102 -

cause" to search, seize, or arrest,

"competency to stand trial," “effective

legal representation," "intent to kill"

sufficient to warrant imposition of the

death penalty, "full and adequate”

consideration of mitigating

circumstances in capital sentencing, or a

“comprehensible instruction" to juries

on any number of guilt-innocence and

sentencing-phase issues does not

necessarily satisfy the purposes served

by the Fourth, Eighth, and Fourteenth

Amendment rules that go by the same |

names. Accordingly, in all those fields,

and in many more besides, the Court

routinely applies its own independent

judgment to the question whether the

facts of a case bring it within those

federal constitutional "rules,"

notwithstanding that the cases nearly

always reach the Court on a record

- 463 <-

containing a state-court determination

that the facts bring the case within a

similarly denominated state-law "rule."5°

90E g., , 109 S. Ct. 2934, 2950

(1989) (although Texas concluded that its

sentencing-phase question concerning the

defendant’s "future dangerousness" adequately

served the function of bringing mitigating

factors before the sentencer for state-law

purposes, this Court, on independent review,

concluded that the procedure fell afoul of the

Eighth Amendment function the submission and

unfettered consideration of mitigating factors is

required to play in capital sentencing); Mills v.

Maryland, 108 S. Ct. 1860, 1867, 1870 (1988)

(review of jury instruction on mitigation that

state’s high court had deemed sufficient to

inform individual jurors that they were required

to consider whatever mitigation each of them

found in the case as required by state law;

"(w)hile conceding that the [Maryland] Court of

Appeal’s construction of the jury instruction .

is plausible," hence that under a "rational

basis" test affirmance would be required, Court

went on to conduct independent review under the

Eighth Amendment and to reverse): Tison v,

Arizona, 481 U.S. 137, 155-56 n.11 (1987) ("The

fact that the Arizona Supreme Court purported to

find ‘intent to kill’ before affirming [the]

death sentences” involved in the case did not

bind the Supreme Court to conclude that the

federal “intent to kill" threshold for capitally

punishing the petitioners had been crossed: upon

independent review, the Court concluded that

Arizona's "intent" rule does not serve the

function that federal law requires of its

similarly worded minimum-culpability rule and

- 104 -

remanded for further proceedings under the

federal rule); Cabana v, Bullock, 474 U.S. 376,

385 n.3, 387, 390 (1986) (similarly independent

review of alternative federal-law threshold for

capital sentencing that the defendant “actually

killed," notwithstanding state-law determination

under Mississippi’s accessorial liability rules

that the defendant "by legal definition [had]

actually killed;’" for "there is a class of

persons vom the State may define as having

committed capital murder but whom [the Eighth

Amendment provides] the State may not

permissibly execute" (emphasis in original;

citation omitted); Francis v. Franklin, 471 U.S.

307, 315-16 (1985) (in reviewing jury instruction

that state courts had deemed sufficient to inform

the jurors in regard to the prosecution’s burden

of proof, Court held that "(t]he question ... is

not what the State Supreme Court declares the

meaning of the charge to be, but rather what [the

Court itself concludes that] a reasonable juror

could have understood the charge as meaning") ;

, 446 U.S. 335, 341-43 (1980)

(review of whether facts of case reflected

"effectiveness of counsel" was independent not-

withstanding state courts’ satisfaction on the

issue); Drope v. Missouri, 420 U.S. 162, 175

(1975) (quoting Norris v, Alabama, 326 U.S. 271,

276 (1945)) (notwithstanding state court

determination that defendant was competent to

stand trial, Court concluded that "ic is

‘incumbent upon’" it to review the defendant's

competency independently “‘in order that the

appropriate enforcement of the federal right may

be assured’"); Aguilar v. Texas, 378 U.S. 108,

111 (1964) (independent review of state judicial

determination of “probable cause“).

- 105 -

A similar independent analysis rightly

applies to the Godfrey issue presented in

the instant case. For notwithstanding

the state courts’ satisfaction that the

“especially heinous ... or depraved" cir-

cumstance served its appointed state-law

function of setting Mr. Jeffers’ case

apart from some unstated "norm" of

first-degree murders in Arizona, that

circumstance, thus interpreted ard

applied, is "so vague" and "so broad"

that it "vitiate[s] the [federal

constitutional] role of the aggravating

circumstance in guiding ... sentencing

discretion," with "the result that a

pattern of arbitrary and capricious

sentencing like that found

unconstitutional in Furman [has]

occur[(red]." McCleskey v. Kemp, 481 U.S.

279, 305 (1987); Gregg v. Georgia, 428

U.S. at 195 n.45.

- 106 - - 107 -

As the Eleventh Circuit recognized soon dissent below, the State can avoid that

after Godfrey, unraveling precisely the issue only by disregarding the square

same state and federal functions that holdings of both Godfrey and Maynard and

Arizona attempts to obscure by tying in arguing that the words "especially

knots here: heinous ... or depraved," standing alone,

The question is not whether we agree are constitutionally sufficient. Respect

with the sentencing court that

appellant [under state law] should for precedent and reality alike compel

receive the death penalty. See note 51

supra [discussing the application of

to that question).

... Rather, the issue we must decide

rejection of that argument.

is whether the construction of the CONCLUSION

("especially heinous"] factor evinced

by the [state] court([s’] application of The judgment of the United States Court

it to the facts of this case comports

with the eighth amendment requirement of Appeals for the Ninth Circuit should

that death sentences be based on clear,

detailed, and rationally reviewable

standards. See Godfrey v. Georgia, 446

U.S. at 427-33.

Proffitt v. Wainwright, 685 F.2d at 1263. Respectfully submitted

The latter issue, without doubt, is a

be affirmed.

James S. Liebman*

(Appointed by the Court)

federal legal issue requiring

435 W. 116th St.

independent federal judicial Box B-16

New York, New York 10027

consideration. It is the issue that the 212-854-3423

majority posed and resolved below,

correctly under Godfrey. Like the

- 108 -

Susan A. Kettlewell

Pima County Public Defender

Donald Ss. Klein

Frank P. Leto

Assistant Public Defenders

32 North Stone

Fourth Floor

Tucson, Arizona 85701

602-740-5300

*Counsel of Record