Opposition Brief — Tison v. Arizona

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MAFA

QUESTION PRESENTED

Having Getermined, on the basis of petitioners’

knowledge and conduct, that petitioners could anticipate the use

of lethal force, did the M one Supreme Court violate

gige when it affirmed petitioners’ death sentences?

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TABLE OF CONTENTS

. , Page

QUESTION PRESENTED ‘

— CASES AND AUTHORITIES 111

. PROVISIONS INVOLVED iv

——— oF THE CASE : |

% „snes FOR DENYING THE WAI’ ‘

18 10

1

. 1. ‘TRANSCRIBED STATEMENT OF RICKY WAYNE TISON

10 (FEBRUARY 1, 1979)

1 2. TRANSCRIBED STATEMENT OF RAYMOND CURTIS TISCH

. (FEBRUARY 1, 1979) :

* — REPORT (RICKY WAYNE TISON)

- 4. PRESENTENCE REPORT (RAYMOND CURTIS TISON)

2 2. TRIAL TRANSCRIPT, RICKY WAYNE 7160

15 (FEBRUARY 20, 1979)

16 6. TRIAL TRANSCRIPT, RICKY WAYNE TISON

(FEBRUARY 21, 1979)

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19

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22

23

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25

2

i a 27

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a

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31

32 -ii-

i Case

2 |

\ Drake v. Francis

3 727 F. 2 990

(lith Cir. 1964) 13

4

Enmund v. Florida

5 456 U.S. 762

102 &.Ct. 33686

4 73 T. 6. 2d 1140 (1962) 4,5,6,8,9,10,11,12,13,14,16

7

Enmund v. State

399 50. 2d 1362

& (Fla. 1961) 5

9 &§x parte Raines

| „ £29 680. 4d 1111

10 (Ala. 19862) 0

11 kx parte Ritter

‘ 375 80. 20 270

12 (Ale. i979) 6,15

13) Fleming v. Kemp

748 F 2d 1435

14 (Lith Cir. 1964) 12

15 Hell v. Weinwright

733 F.2a 766

1 (llth Cir. 19646) 12

17 Hammerstein v. Superior Court

341 U.S. 491

I~ 71 &.Ce. 820

95 . K. 0 1135 (195) ) —

19

Jonnson v. Kemp

200 565 F.Supp. 1496

(8.0.Ga. 1964) 13

21

ohnen v. Zant

22 249 Ga. 612

295 6.1. 2d 63 (1962) €,13

23

| Leatherwood v. State

24 535 80. 2d 645

(Miss. 1963) i4

25

Meanes v. State

26 666 &.W.2¢ 366

7 | (Ta.Crig.App., Sept. i4, 1963) ° e

People v. Davis

2s 95 111.28 1

447 . 4. 2d 353 (1963) 6,14

29 |

| People ». Garcie

* 97 111.2 86

1 454 . . 2% 274 (1963) 0

2 111

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CONSITUTIONAL PROVISIONS INVOLVED

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THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTION:

EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR

EXCESSIVE FINES IMPOSED, NOR CRUEL AND UNUSUAL

PUNISHMENTS INFLICTED.

THE FOURTEENTH AMENDMENT TO THE UNITED STATES

CONSTITUTION, IN PERTINENT PART:

(NJOR SHALL ANY STATE DEPRIVE ANY PERSON OF

LIFE, LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS

OF LAW. ...

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STATEMENT OF THE CASE

Respondent is in general agreement with the Statement

of Facts provided by petitioners. (See Petition for Writ

of Certiorari, pages 10-13.) There is no dispute

regarding the history of petitioners’ cases from February

and March, 1979, when they were tried, to the present

time. However, because of the nature of the question

presented by petitioners, it is critical that this Court

be aware of the precise roles played by petitioners in the

prison break as well as the kidnapping, robbing, and

killing of the four victims. Therefore, respondent

submits the following additions to and modifications of

the factual statement provided by petitioners.

While it is true that the prison break did not occur

until July 30, 1976, one must go further back in tire in

order to get a complete picture. According to Ricky

Tison, he, Raymond Tison, and Gary Tison began planning

the escape “a couple of years" before it actually

happened. (Exhibit i, page 5.) The escape pian was

finalized approximately 1 week ahead of time. (Id. at

8.) Ricky personally “cut down” 211 of the guns that were

used in the prison break. (1d. at 11.) According to

Raymond Tison, petitioners were aware, well in advance of

the actual escape, that Randy Greenawalt would play a role

in the escape. (Exhibit 2, page 6.) Petitioners were

assisted in the preparation for the escape by their uncle,

Joe Tyson, who provided « vehicle (the Lincoln) and the

guns. (Id. at 6-7.)

Both petitioners played critical roles in the actual

escape. In fact, it was Ricky Ti on who initiated the

escape by pointing a shotgun at 4 prison guard. (Exhibit

1, page 16.) After petitioners, Donny Tison, Gary Tison,

co navn eon#se®}: &© wo

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and Randy STeenavalt got outside the prison, they drove a

car from the prison to a nearby hospital, where the

Lincoln was waiting. They made their getaway from

Florence in the Lincoln. (1d, at 17.)

All went well until the evening of August 1, 1978,

when @ tire blew. At that point, the five men decided

that they would take the next car that came by. While it

was Gary Tison wh suggested that course of action,

everyone else agreed with the plan. (1d, at 24-25.)

Raymond Tison flagged down John Lyons’ Mazda while the

other four men hid behind an embankment near the side of

the road. (1d, at 26-27.) Accompanying Lyons were his

wife, Domnelda, his 15-year-old niece, Theresa, and the

Lyons 22-month-old son, Christopher. After Lyons stopped

his car in an apparent effort to assist Raymond Tison, the

other four men came out of hiding and pointed guns at the

victims. The victims were herded into the back seat of

the Lincoln, which Raymond Tison then drove some distance

down a side road. Ricky Tison, Gary Tison, anc Rancy

Greenawalt got into the Mazda and followed the Lincoln.

The vehicles were then parked trunk-to-trunk. (1d. at

29-31.) The victims were taken out of the Lincoln. While

Donny Tison kept an eye on the victims, petitioners took

the victims’ property out of the Mazda and went through

it. They then transferred the property that had been

inside the Mazda to the Lincoln and vice versa. (lid. at

31-33.) Ga y Tison then told Donny Tison to move the

Lincoln. After it had been moved, Gary Tison rendered it

inoperable by firing several bullets into the engine. At

that time, the men escorted the four victims back into the

Lin- In. (Id. at 34.)

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1 | Ricky Tison heard John Lyons beg for his life and the

2 lives cf the others; he heard Gary Tison tell Lyons thet |

3 | he (Gary) was 2 about it." (id. at 35, lines |

| 8-13.) Gary Tison then told Donny Tiason to get some water

5 for the victims: when Donny could not find a container,

6 petitioners went to help him. After petitioners came back

- with the water, Gary Tison told them to give “him” |

ef (apparently John Lyons) a drink. (1d. at 36, line 9. |

9 Although it was dark, Ricky Tison could distinguish one

10 | person from another. Soon after John Lyons was given 4 ;

1] drink, Gary Tison and Randy Greenawalt moved behind the

12 | Lincoln, raised their shotguns, and fired numerous rounds

13 | into the Lincoln. (ig. at 36-41.) This, of course,

14 resulted in the deaths of the four victims, The five men

15 ö then got into the Mazda and headed toward Flagstaff,

16 Arizona. Investigators found the Lincoln and the dead

17 victims on August (, 1976. On August 11, 1978, Donny

18 Tison was killed after the gang ran a roadblock and

10 | engeces in & gun tattle with police ocfificers near Case

sl Grande, Arizona. Gary Tison escaped from the immediate

21 area where the battle occurred, but a later search of the

surrounding desert area resulted in the discovery of his

body. Petitioners and Randy Greenawalt were captured

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within a short time after they ran from their vehicle.

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THIS COURT SHOULD DENY THE PETITION FO®

WRIT OF CERTIORARI BECAUSE, AS A REVIE\.

OF THE FACTS AND APPLICABLE LEGAL

PRINCIPLES DEMONSTRATES, PETITIONERS

CLEARLY ANTICIPATED AND CONTEMPLATED

THAT LETUAL FORCE WOULD OR MIGHT BE USED

BY THE CONVICTED MUJRDERERS THAT THEY

UNLEASHED UPON SOCIETY.

- Petitioners request this Court to issue a writ of

certiorari. This Court has jurisdiction to do so under 26

U.S.C. § 1257(3), but, as this Court has held, the issuance

of the writ is discretionary. Hammerstein v. Superior

Court, 341 U.S. 491, 492, 71 8. ct. 620, 621, 95 L. Ed. 20

1135, 1137 (1951). Typically, this Court will grant

certiorari in three situations: (1) the case presents an

issue of national importance that this Court needs to

settle; (2) there is a conflict between the opinions in

different circuits; or (3) the petitioner may be entitled

to relief and he wili not be able to obtain that relief in

any other court. Petitioners’ claim fai)s on all three

points.

This case does not present any novel issue of national

importance. This petition presents nothing more than an

applicaéticn of the principles articulated by this Court in

Enmund v. Florida, 458 8. 762, 102 S.Ct. 3368, 73 L. Ea. 2d

1140 (19862), to the facts of this case, and does not afford

this Court an opportunity to resolve any issues left open

by Enmund. A decision in this case would not measurably

add to the body of case law used by the lower courts.

This case will not resolve any conflict in the

circuits. A review of the federal cases dealing with the

Enmund issue shows that there are no conflicts to resolve.

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Finally, this Court is not the only forum in which

petitioners might obtain relief. Petitioners have yet to

seek relief pursuant to 26 U.S.C. § 2254. If they are

entitled to relief, they should seek it pursuant tc that

statute.

violation o u Vv. or °

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B. Petitioners’ death nalties were net i sed in

f

Petitioners contend that their death sentences were

8 imposed in viclation of Enmund v. Florids, supra. A review

5 9 of Enmund is critical to an evaluation of petitioners’

5 fo 10 claim. Earl Enmund, Sampson Armstrong, and Jeanette

11 Armstrong were all convicted in the April 1, 1975, shooting

12 Geath of an elderiy couple. After being convicted of two

13 counts of first-degree murder and one count of robbery,

ed Enmund was sentenced to death. In affirming Enmund's

15 | convictions and sentences, the Florida Supreme Court noted

16 that there was “no direct evidence at trial that Earl

17 | Enmund was present at the back door of the Kersey home wher

the ple to rob the elderly couple led to their being

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1 purdered.” Enmund v. State, 399 Sc.2d 1362, 1370 (Fla.

20 | 1961). Thus, as this Court stated in its opinion, Enmund

21 | wes nothing more than a getaway driver. 456 U.S. 2

766-87, 102 S.Ct. at 3371, 73 L. . 20 at 1145 n.2.

Petitioners contend that Enmund stands for the

proposition that the death penalty cannot be imposed pon

either of them because the evidence does not show that they

killed, attempted to kill, or intended to kill their

victims. Respondent urges that petitioners’ interpretation

of Eng is unduly narrow. A review of the Enmund opinion

demonstrates that the death penalty can be imposed not only

S S N N N88

upon one who killed, attempted to kill, or intended to

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kill, but also one who (1) intended that lethal force be

used (456 U.S. at 797, 102 S.Ct. at 3376-77, 73 L.Ed.2d at

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1151). (2) anticipated that lethal force would oz might be

used (456 U.S. at 766, 102 S.Ct. at 3372, 73 L.Ed.24 at

1146, emphasis added), or (3) contemplated that life would

be taken or thet ‘ethal force would be employed by others

(456 U.S. at 799, 601, 102 S.Ct. at 3377, 3379, 73 T. 8. 20

at 1151, 1154). A servey of post-Enmund cases demonstrates

that courts frequently hold that Enmund does not limit the

Geath penalty to cases where the defendant kills, attempts

to kill, or intends to kill. See, e.g., Ross v. Hopper. ie

F. 20 1526 (lith Cir. 19863); State v. Calhoun, 466 A.2d 45

(Mad. 1963); Meanes v. State, 666 8. .. 2d 366 (Tx.Crim.App.,

Sept. 14, 1963); State v. Stokes, 306 N.C. 634, 304 8. E. 20

164 (1983); People v. Garcia, 97 I11.2d 586, 454 K. E. 2d 274

(1963); People Vv. Davis, 95 111.24 1, 447 R. E. 2d 353 (1963);

State v. Garcia, 664 F. 2d 969 (N.M.), cert. denied, 103

S.Ct. 2464 (1963); Ex Parte Raines, 429 50. 20 1111 (Ala.

1962); State v. Copeland, 276 s. ct. 572, 300 5. C. 2 63

(1962), cert. Genied, 103 S.Ct. 1602 (1963); Smith v. State,

424 So.2¢ 72¢ (Fie. 1962): Ruffin v. State, 420 So.7d 591

(Fie. 1982); Jobnson v. Zant, 249 Ga. 612, 295 8. Z. 2d €3

(1982). The Arizona Supreme Court has held that the phrase

“intended to kill,” as that phrase is used in Enmpund,

“encompasses the situation where a defendant contemplated,

anticipated, or intended that lethal force would or might be

taken in accomplishing the umdéerlying felony.” State v.

Emery, ____Ariz. . „ 688 P. 2 175, 180 (1964)

(citations omitted).

Petitioners’ protestations notwithstanding, it is

perfectly clear that there are critical factual distinctions

between Enmunc and the case at bar. Neither petitioner was

@ mere “getaway driver.” Both knew that Gary Tison had

tried to escape from the Arizona State Prison in 1967, and

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ES SD Annen

thet he had killed es prison guard during that attempt.

(Exhioit 3, rege 6; Exhibic 4, pages 12, 15.) Both

petitioners were intimately involved in the prison break;

without their essisteance, the escape plan could not and

would not heve succeeded. Neither petitioner wes serely

“present” when the victims were abiucted: Raymond flagged

Gown the victias end Ricky held a gun on thes. Raymond

Grove the Lincoin off the highway onto a dirt road. After

both the Lincoln end the Mazda came to « halt, petitioners

went through the victias’ property and put it in the Made

They then transferred other items between the two ve vicies.

Any statement, implied or otherwise, to the effect thet

petitioners were getting tet when the fatal shots were

fired is contradicted by Ricky Tison, who edmitted that he

enc Raymond returned to the area where the Lincoln wes

perked before the shots rang owt. While it hes never beer

proved that either petitioner fired any of the fatal shots,

the evidence suggests thet Ricky Tison's weapon wes used to

fire teo rounds near the Lincoln. (Emhibite £ em é.)

The case before this Court is not the typical

convenience store holdup. In considering the petition, this

Court need not concern itself with the plight of the getaway

Gtiver who gay or say not be aware of the inientions of the

“triggersen” who ultimately kills the ict ie. In concluding

thet the death penalty is not @ viable deterrent to the :

underlying felony in felony-murder situstions, this Court

mace the following statement:

it would be very different if the

likelihood of @ killing in the course of

Any YAK, A dL.

should the blame for the killing

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jony.

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BSsvueseegereewreese

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Enpund v. Florida, supra, 458 U.S. at 799, 102 6.Ce. at

337€, 73 C-. 2 at 1153. The extent of petitioners’

involvement in this fatel course of events is so great thet

they should share the blame. They deserve the ultisete

penalty.

in Ex parte Ritter, 375 8. 2 270, 275 (Ala. 1979), the

court, viewing the concept of accomplice liability es a

continuus, made the following observation:

Ritter stands at the most culpable end

of the spectrum of accomplice

liability. He is closer to an

individual who fires a non-fatel shot in

@ killing rather than one who eite

outside es a lookout.

Like Ritter, petitioners stand at the “sost culpable end” of }

the continuum. The record demonstrates that petitioners helped

plen end carry owt the prison break. They provided the weapons

thet were used to hold guards eat bey during the break and to |

murder « defenseless family less than 72 hours later. Raysond

Tison flagged down the Mazda; after John Lyons stopped in order

to lene him « hand, Ricky Tison end the other sen came out of

hiding and seized upon the victins, holding several guns 0

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them as though they presented « threat. Petitioners kidnapped

and robbed the victims, and then herded them into the Lincoln

after Gary Tison hed rendered it inopera’¢«. Even if it is

essumec that neither petitioner fired ey shots et the victins,

they were et most @ short distance away when numerous shots

were fired into the Lincoln. It cannot be seriously ssintei ed

thet petitioners did not anticipate or contemplate that let tl

force would of sight be employed.

6. iat ] =*) A a |

1| ‘tioners’ conduct on the basis of the do

3 E lity,” but on the basis of thos

2) randeards articulated by this Court in Eneun:

24 At two pointe in their vesctendus, petitioners discuss

the issue of “foreseesbility” end conclude that it is

constitutionally imperpissible to utilize such @ standard in

page 17, et seq., page 22, et seg.) A review of the Arizone

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6) death penalty ceses. (See Petition for Writ of Certioreri,

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Supreme Court's opinions in State v. Ricky Wayne Tison (No.

4612-2-PC, Gecided Oct. 16, 1964; attached to Petition for

| Writ of Certiorari as Exhibit A), end State v. Raymond Curtis

11) Deer (No. 4624-2-PC, de sided Oct. 18, 1964; attached to

12 | Petition for Writ of Certiorari es Exhibit B), demonstrates

* thet whet petitioners pejoretively refer to as the “tort

om doctrine of foreseeabi lity” is not the touchstone of either

15 majority opinion. Indeed, those portions of the opinions

— that deal with the Enmund issue are comprised of nothing more

than as review of the relevant facts and an evaluation of

those facts in light of this Court's pronouncements in

Enpund. See State v. Ricky Wayne Tison, supra, pages 2-5;

State v. Reymond Curtis Tison, supra, pages 2-5. It appears

thet petitioners heave seized upon certein language utilized

by Justice Feldman in his dissent; however, contrary to the

Gissent and to petitioners’ argument, the concept of

“foreseeabi lity” was not utilized by the Wiens Supreme

Court. Weitner Enpung nor either of the most recent Tison

Opinions holds that “tort foreseeability” is the test.

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principle thet puis t pust be determine:

esis of the defendant & personal culpability |

stion with the crimes for which he is to

Petitioners then argve that the Arizona Supreme Court

violated Enpung when it affirmed their death sentences in

spite of the “fact” thet the death penalty is

ES SD Annen

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disproportionate to each petitioner's personal

culpability. Respondent does not urge that it is proper

for @ sentencing authority to impose a sentence that is out

of proportion to the individual defendant's degree of

culpability. See, e.g... Enmund v. Florida, supra, 456 u..

et 796, 102 S.Ct. at 3377, 73 T. . 2 at 1152. However,

once gal @ review of the Arizona Supreme Court's

opinions demonstrates that the court did not affirm the

imposition of disproportionate sentences. Under Ensund,

petitioners’ conduct is not the only key issue; another

element thet is critical to the analysis is their

knowledge. Beceuse of the numerous factual distinctions

involved, the fact thet Enmund’s death sentence was found

to be “disproportionate” to the role he pleyed in the

Kersey surdgere is largely immaterial to the question

presented by petitioners. Given the standards articuisted

by this Court in Enmund, the Arizona Supreme Court did not

violate the concept of “disproportionality” es that concept

is utilized in Enmund.

Mrigonea Supreme Court did not alter, such les

ont redict, the findinas bade end conclus:

Litioners first appcs.

Petitioners urge this Court te grant review on the

basis of theit allegetion that the Arizona Supreme Court,

in ite latest opinions, ignored its earlier

“interpretation” of the record. Petitioners ground this

clei in the following lenguage, which is taken from the

firet int on in State v. Tison (Ricky), 129 Ariz. 526, 633

P.24 335 (1961):

T @ record establishes that both

Ricky and Reymond Tison were present

S Prsyueeresnr

their assistance.

pe: ; that the Lyonse

heresa Tyson Gie, that they dic no'

Ot in advance that these homicid

lOuld take piace. of that they Gi:

ectualiy pull the triggers on the §

mich inflicted the fatal wounds is ©

Cc

who were willing to and hed in the st

committed savege, homicidal acts. Shey

were palpably indifferent to the

consequences of their lawless conduct.

They will not be relieved of the

punishment the lew exacts where the

criminal association was formed,

supported and carried out irrespective

of the probable consequences that human

life would be taken to ensure the

success of the criminal enterprise. We

assent to the retributive principle of

justice which demends that Sons be

punished in proportion to their persona)

involvement in the crise, focusing the

inquiry on the hare which say fairly be

attributed to @ perticipant's conduct.

See U.S. Const. amend. Vill. This is not

@ cease of mininal sssistance.

bested: SH isi

" Ed. 973 (1978).

129 Aria. et 545, €33 P.2¢ at 354 (emphasis added). Agein,

petitioners bese their argument on certain language from

toe dissent to the letest opinions. However, it is most

apparent thet the Arizona Suprese Court Gid not reinterpret

the record when these cases came before that court for the

second time. At no time hes thet court held thet either

petitioner ectually killed any of the four victims or that

either petitioner planned any of the killings. The sileged

“change” involves the issue of intent. The original

conclusion thet petitioners harbored no specific intent to

kill remains unchenged. The court's reference to “intent”

in the letest opinions is the product of « wholly different

inquiry, @n inquiry necessitated by Enpund. Because the

Arizone Supreme Court interprets the phrase “intent to

kill” in euch @ way thet it includes (1) an intent to use

lethal force, (2) an anticipation that lethal force will or

Bight be used, and (3) «a contemplation that lethal force

11

EDA en

will be used by others (see State v. Emery, supra), there ’

16 no inconsistency between the original conclusion that

there was no specific intent and the recent conclusion

thet, under Enmund, the record supports the finding that

petitioners intended to kill the victias. While « semantic

Gifficulty wight dave been avoided hed the Art ne Supreme

Court not decided to interpret the phrase “intend to 11

in such @ manner es to include the other three concepts,

the fact femains that the 19861 and 1964 opinions are

concerned with different kinds of intent. Because the

ant did not reinterpret the record, it did not viclete

the principles set forth in Presnell v. Georgis, 439 U.S.

14, 99 6.Ct. 235, 56 T. . 2 207 (1976).

Fr.

Tiseine petitionste” e

Petitioners and respondent agree th.t the interpretations

given Enpund by the lower federal courts and the state courts

warrant consigerstion. However, respondent disputes any

dont ent on thet most of these cases decide the question in

petitioners’ fevor. In Hall v. Weineright, 733 F.26 766, 774

(Lith Cit. 1964), the court rejected the defendant's Engen

Seer on the ground that “Hell's personal culpebility is fer

sore flagrant than thet of the eccused in Enpund.” One

Gistinetion involved the defendant's presence when the

killings occurred; Hall ses present bet Eneund ses not. (See

aiso Mell vy. Weineright, 565 F.Supp. 1222 . b. ie. 1963);

Siete v. Held, 420 So.26 672 (Fle. 1962); Ruffin v.- State,

420 So.2¢ 591 (Fle. 39@2).) In Flewing v. Kemp, 768 . 26

1435, 1453 (Lith Cir. 1964), the court sade the following

observetion in concluding thet the isposition of the death

Penalty did not violate Enpund:

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ua [sic] does not require an

expilic inding by the sentencer (court

or jury) that the defendant “tillledc),

att (ed) to will, oF intend(ed) that

@ killing take plece or thet lethal

force be employed” before the death

penreity can be isposed. What is

importent is that the sentencer be

Setistieo the evidence establishes the

det endet e involvesent in the surder to

the extent (sic) reqires. if

the sentencer is not, or could not be,

e satisfied, Edmund (sic) deems the

Geath penalty unreasonably ¢isperate and

thes forbids its isposition.

Drake v. Francis, 727 F.2¢ 990, 997 (Lith Cir. 19646), is

instructive in thet, while Drake wes the ectwal surderer,

the court found Enpuné distinguishable on the basis of whet

it cherecterizec as Ensund’s “finor sccomplice role.” In

Johneon vy. Kemp. S85 F.Supp. 1496, 1507 (S.D.Ga. 1964), the

court rejected Johnson's Enpund cleis on the ground thet

Johnson “hed been an ective perticipent in all events

seecing to end including the surder.” The court concluded

es toliows:

His culpebility in thet crise wes

mot Vicerious #6 wees thet of the

petitioner in „ @n@ the hoiding in

Goes Give this Court ceuse to

“se death sentence

Gisproportionate to his crise.

(ig. et 1506.) (See siso Johnson vy. Zant. 249 Ga. 812, 295

5. 4. 2 ( (1962).)

Several state court opinions ere 1% instructive. in

State v. Copeland, supra, Copeland and Semmy Roberts

robbed, kidnapped, em’ killed three service station

ettendents. Both sen received three death sentences. On

reel. Roberts contended that Enpund precluded his being

sentenced to death for the three surgers. The court

Gisegreed, noting thet Roberts hed ectually killed one of

the victias. More significantly for the present cease, the

Court pointed out thet Enpund 4i¢ not preciude death

sentences in commection with the other two surders because

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oe wose@EgnEeoa & ww

Roberts “was present the entire time the crimes were

committed, and he held a gun on at least one of the two

victims and forced him to lay on the ground whereupon both

men were shot to death.” 300 S.E.2d at 67 The court held

that, given those ciicumstances, Roberts could not

“seriously contend that he did not intend or contemplate

that life would be taken.” Id.

In People v. Davis, supra, tse court noted that,

although the defendant was not the triggerman, Enmund did

not preclude imposition of the death penalty. Two of the

factors that the court considered in reaching that

conclusion were (1) Davis was present during the course of

the burglary thzt resulted ir. the victim's death, and

(2) Davis was carrying stolen items to his car when his

codefendant shot the victim. 447 N.E.2d-at 376.

In Leatherwood v. State, 535 80. 2d 645, 656 (Miss.

1963), tr. court found Ene readily distinguishabl»: on

*

its facts:

Though Michael Leatherwood was not

the “triggerman”, he planned, schemed,

and ultimately physically subdued the

victim by choking him with a rope, while

another stabbed and bludgeoned the

victim to death. These are hardly the

facts upon which was decided by

the United States Supreme Court and thus

we find that appellant's argument is not

persuasive, and we find no merit in this

assignment of error.

In State v. Ruiz, 94 111.2d 245, 447 R. Ed. 2d 148, 156

(1982), the court rejected the claim that Enmund precluded

the imposition of the death penalty upon the 19-year-old

defendant. The cour. distinguished Enpund on the ground

that Ruiz, unlike Enmund, was not tried or convicted on a

felony~murder theory. The court went on to hold that

Eu did not apply for this reason:

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In our case Ruiz was present throughout

the violent episode, actively

participated, except for striking 4

fatal blow, and his conduct was such as

to support an inference that he

possessed the intent to take the lives

of the victims.

These cases strengthen respondent's contention that, in

the words of the Alabama Supreme Court in Ex parte Ritter,

supra, Earl Enmund and petitioners stand at opposite date

of the spectrum of accomplice hiability." 375 80. 2d at

275.

ooeoseeaewkses:ww7Twe =

— —

2 >

CONCLUSION

Because this case involves no unique circumstances, and

because petitioners have not yet sought other available

remedies, this Court should deny be instant petition.

Enmund does not prohibit the impo ition of the penalty of

death upon petitioners, particuJurly in view of the roles

played oy petitioners in the abduction of the victims and

the surrounding events. The Arizona Supreme Court has not

substi uted a test based on “foreseeability” for the

standards articulated by this Court in Enmund, nor has that

court reinterpreted the record _n such a manner as to

satisfy the Enmund standards. Respondent is in full

agreement with the principle that the punishment should fit

the crime; the imposition of the death penalty here does no

violence to that principle. For these reasons, respondent

respectfully requests this Court to deny the requested

writs of certiorari.

Pespectfully submitted,

ROBERT K. CORBIN

Attorney General

WILLIAM J. SCHAFER 111

Chief Counsel

Criminal Division

Gd A.A

DAVID R. COLE

Assistant Attorney General

Attorneys for RESPONDENT

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