Petitioners Brief — Schad v. Arizona

—— <<"

No. 90-5551 pr $055

a ES cy

- In The >

Supreme Court of the United States

October Term, 1990

—#—

EDWARD HAROLD SCHAD, JR.,

Petitioner,

V.

ARIZONA,

Respondent.

—_—4—

On Writ Of Certiorari To The

Supreme Court Of Arizona

—

BRIEF FOR PETITIONER

+

Joun M. Baiey

Jonn R. HANNAH

*Dentse I. YOUNG

Arizona Capital

Representation Project

Arizona State University

College of Law

Tempe, Arizona 85287-0604

(602) 965-8185

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

Sage are er

QUESTIONS PRESENTED

1. Whether a capital conviction obtained without

providing for a unanimous, or even a majority, vote of the

jury violates the Sixth, Eighth and Fourteenth Amend-

ments?

2. Whether a state may avoid a capital defendant's

exercise of his Eighth and Fourteenth Amendment rights

under Beck v. Alabama by denying that a necessarily

included offense is a “lesser included offense” under

state law?

TABLE OF CONTENTS

Page

QUESTIONS PRC? occ ccccvvscsnscnseunvenun i

TABLS OF AASTURUEMD sc cccccccesccuveseeuenae iv

eet Bo Fk eer 1

eo a Oe Pererr I

CONSTITUTIONAL AND STATUTORY PROVI-

SHED OVO? oc cccccsccccnssusensnseuneneee 1

STATERGBce OF Feew CARR. <.cccccessuceveuneee 3

Wee ht Mr 3

ae es ) Pere 5

C. FRO ABMOGE «v0 ccsesseccnsseeesneeeeeeee 6

SUMMARY OF ARLSUIAGEINE «0 0ccccccccsasvebaceaal 7

ARLSUDEEING 0000 00s00006seence tbs sun beeen 9

1. ARIZONA’S PROCEDURE ALLOWING A JURY

TO CONVICT A CAPITAL DEFENDANT WITH.

OUT AGREEMENT AS TO WHAT THE DEFEN-

DANT DID VIOLATES PETITIONER’S

CONSTITUTIONAL RIGHT TO A UNANIMOUS

JURY VERIIUR 0. oc cscccesessscvuenseuse aan 9

A. Jury Unanimity Is Constitutionally Required

in Capital Cases ...ccccccsscssuenseueeenel 10

B. This Is Not a Unanimous Verdict.......... 17

Il. ARIZONA’S PROCEDURE VIOLATED THE

CLEAR MANDATE OF BECK V. ALABAMA BY

DENYING PETITIONER’S JURY THE OPTION

OF CONVICTING HIM ON A NECESSARILY

LESSER-INCLUDED OFFENSE................. 20

A. The Pertinent BWhemee. «o.<cesccsseesesue 21

B. The Pertinent Criminal Statutes............ 21

TABLE OF CONTENTS — Continued

Page

C. The Trial Court’s Charge.............. 22

D. The Arizona Supreme Court’s Decision 22

E. The Command of Due Process............. 23

I Ere 27

iv

TABLE OF AUTHORITIES

Pape

Cases:

Addington v. Texas, 441 U.S. 418 (1979) .............. 16

Allew v. State, 77 Md.App. 537, 551 A.2d 156 (1989)... .. 9

Apodaca v. Oregon, 406 U.S. 404 (1972)........ 13, 15, 17

Ashby v. State, 271 Ark. 884, 611 S.W.2d 512 (1981)... y

Ballew v. Georgia, 435 U.S. 237 (1978)............. 13, 14

Beck v. Alabama, 447 U.S. 625 (1980).......... .. passim

Beil vw. Bursam, GBB US. SSS (IGFET)... ccc cscccccnce: 15

Booth v. Maryland, 482 U.S. 496 (1987)............... 15

Brinegar v. United States, 338 U.S. 160 (1949)......... 11

Brown v. Louisiana, 447 U.S. 323 (1980)........... 13, 14

Burch v. Louisiana, 441 U.S. 130 (1979)............ 14, 15

Caldwell v. Mississippi, 472 U.S. 320 (1985)........ 215

Duncan v. Louisiana, 391 U.S. 145 (1968)............. 17

Estelle v. Williams, 425 U.S. 501 (1976)............... 1]

Ford v. Wainwright, 477 U.S. 399 (1986)......... ,aee B5

Fountain v. State, 275 A.2d 251 (1981) ................ y

Francis v. Franklin, 471 U.S. 307 (1985) .............. 10

Gardner v. Florida, 430 U.S. 349 (1977)............... 15

Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983)..... y

Harris v. Oklahoma, 433 U.S. 682 (1977).............. 26

Hopper v. Evans, 456 U.S. 605 (1982)................. 24

Illinois v. Vitale, 447 U.S. 410 (1980)................. 26

TABLE OF AUTHORITIES - Continued

Page

In re Winship, 397 U.S. 358 (1970)............. 7, 10, 15

Ivan V. v. City of New York, 407 U.S. 203 (1972)...... 1]

Jackson v. State, 490 N.E.2d 1115 (Ind. 1946)...... Late

Jackson v. Virginia, 443 U.S. 307 (1979). -............. 1]

Johnson v. Louisiana, 406 U.S. 356 (1972).. 13, 14, 15, 17

Lanzetia v. New Jersey, 306 U.S. 451 (1939)........... 20

Linkletter v. Walker, 381 U.S. 618 (1965).............. 13

Locket? o. Gilde, G56 US. SRG CISTER. coc ccc cc ec ccess. 15

Markham v. State, 209 Miss. 88, 46 So.2d 88 (1950)

McKoy v. North Carolina, 110 S.Ct. 1227 (1990)... .16, 26

Payne v. Virginia, 468 U.S. 1062 (1984).............. 26

People v. Maxey, 37 Ill.App.3d 905, 346 N.E.2d 51

t .. VAG ge Ure irene re erry ry arena ira g

J fee me ot Oe: Prerreer eerie ree 15

Sandstrom v. Montana, 442 U.S. 510 (1979)........ 10, 26

Sansone v. United States, 380 U.S. 343 (1965)......... 23

Schmuck v. United States, 109 S.Ct. 1443 (1989)....... 25

Spaziano v. Florida, 468 U.S. 447 (1984)......... 24, 25

State v. Almy, 67 N.H. 274, 28 A. 372 (1892).......... 9

State v. Celaya, 135 Ariz. 248, 660 P.2d 849 (1983)

[ewe a whe bh ee eine Raa aaa eee a), ay ao

State v. Diaz, 317 N.C. 545, 346 S.E.2d 48% (1986)..... gy

State v. Dugan, 125 Ariz. 194, 608 P.2d 771 (1980).... 23

vi

TABLE OF AUTHORITIES —- Continued

State v. Gadson, 148 N.j.Super. 457, 372 A.2d 1143

(1977)

State v. LaGrand, 153 Ariz. 21, 734 P.2d 563, cert.

Gmeies GG UAB, Ge GROMER oc cc cnccccccccccccscuces 22

State v. Leslie, 147 Ariz. 38, 708 P.2d 719 (1985)...... 23

State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d

670, cert. denied 474 U.S. 975 (1985)............... 22

State v. Parker, 221 Neb. 570, 379 N.W.2d 259

I a ee an ee re Oe ea er ee i a a NS)

State v. Ralls, 167 Conn. 408, 356 A.2d 147 (1974)..... Yy

State v. Schad, 163 Ariz. 411, 788 P.2d 1162 (1989)..... 1

State v. Stephens, 93 Wash.2d 186, 607 P.2d 304

RC ie on Saas aL ade peaknae ene bac see ie €s'ea% 4

Taylor v. Kentucky, 436 U.S. 478 (1978)............... 11

Tison v. Arizona, 481 U.S. 137 (1987).................. 3

United States v. Beros, 833 F.2d 455 (3rd Cir. 1987) .... 17

United States v. Ferris, 719 F.2d 1405 (9th Cir. 1983) .... 17

United States v. Garrett, 471 U.S. 773 (1985).......... 23

United States v. Gipson, 553 F.2d 453 (5th Cir. 1977) .17, 23

Way v. State, 155 Ala. 52, 46 So.2d 273 (1908)........ y

Williams v. Florida, 399 U.S. 78 (1970) ............ 13, 14

Williams v. State, 438 So.2d 781 (1983)................ )

Weodson v. North Carolina, 428 U.S. 280 (1976)..... 7, 15

vii

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONS:

Ss ES Se Ok ED Sn kev ks cccccccavascacucnd 2,9

a a IE eC Ui Sexevserscncscemese wns 9

ae | Perret eee 9

mee errr ere 9

POREUEP GPU UNS~ GONE Gy TF GEDOUD ce cccenseneeessonses 9

Sn CU I I oak ko decccxseessncuS eta es 9

Es Me US IS oc oceccecvececcvesesesnes 9

Fee Ss I Ns eb d we cc anccubarsrnnwaueue 9

ieee ae 0 eee ree 9

OKLA. CONST. Art. 2, §19 (1981)................2.2. 9

foe eer ere 9

An Gees GR, Ty Te GUI oc ivcccccctvcccenses 9

ee SO oo Ci cce psa Vadendasawenes 9

ee ee Cis ons icone s eaneen nee y

ee Pe end cok nek Wed Seca taukernan 9

Weuet. Cueor. Ast. 1, Gl? . Amend. 10.............. )

STATUTES:

I Ee ia Pi ats ee eal testes ay ae oe

Cal. Penal Code §1149 (Deering 1971)................ 9

Colo.Rev.Stat. §16-10-108 (1986) ...................0.. )

Viii

TABLE OF AUTHORITIES - Continued

Page

Ill.Rev.Stat. ch.38, §115-4 (1988) ............ 2. cece ee 9

Ky.Rev.Stat.Chap. 29A.280 (1988) .................+4-- 9

Mont.Code Ann. §46-16-603(1)(1989)...............5.. y

POUUPIUUIENG, UTD GUOUPD svc esccvcccescccesscnces 9

S.D.Cod.Laws, Title 23A-26-1 (1988).................. 9

1 Wyom.Stat. §7-11-501 (1987)..........00.cc0cc eevee. 9

CRIMINAL PROCEDURE RULEs:

PIR. BOUND osc cccecsevcocessececnccens 9

SE Es coke due deco 6dednst tics teen taewees 9

SA GUNS BUUU PUNE GOONER s os 6s cvecccecccvcteces y

Maas GUD GUE GUUUD cc vs ceccvevessenecsees 9

Se GE CED MUI eee csccecceceseencsvesseses 9

Ge es Ree GE BOE icc ccccevcccccsocees 7)

Tenn.R.Crim.P., Rule 21 (1990-91). ...................- 9

po eer ee eee 9

OTHER AUTHORITIES:

Hale, M., HISTORY OF THE COMMON LAW OF

i cece ahh hae nwiale onic 12

Hans, V.P., and Vidmar, N. Judging the Jury (1986) .... 16

1x

TABLE OF AUTHORITIES — Continued

Page

Hastie, R., Penrod, S., and Pennington, N., Inside

8 8 rr rrr eT ert eT reer eee ee ee 16

Op. Att’y Gen. No. 72-31 (1972) ..........-. eee ee eeee 9

'! POLLOCK (SIR FREDERICK) & MAITLAND

(FREDERIC W.), THE HISTORY OF ENGLISH

LAW BEFORE THE TIME OF EDWARD I (2d

8 Per eer re Tere err eee Tee TTR Tr 12

I STEPHEN (SIR JAMES FITZJAMES), A_ HIS-

TORY OF THE CRIMINAL LAW OF ENGLAND

ES rere reper teeter te ee Teer eee eee ee 13

9 WIGMORE (JOHN HENRY) (Chadbourn re.

Pe aakecneohivessd bibs hesevevece eer 12

OPINION BELOW

The opinion of the Supreme Court of Arizona affirm-

ing petitioner’s conviction and sentence of death is

reported in State v. Schad, 163 Ariz. 411, 788 P.2d 1162

(1989), and reproduced at J.A. 30-55.

+

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C.

§1257(3), the petitioner having asserted below and assert-

ing here a deprivation of rights secured by the Constitu-

tion of the United States.

The judgment of the Supreme Court of Arizona was

entered on December 14, 1989. The motion for recon-

sideration was denied on April 17, 1990. The Petition in

this case was timely filed on August 16, 1990.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the following provisions of the

Constitution of the United States:

The Sixth Amendment, which provides in part:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

aa

The Eighth Amendment, which provides:

Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment, which provides, in part:

(Njor shall any State deprive any person of life,

liberty, or property, without due process of law... .

This case also involves the following state constitu-

tional provision:

Art. 2, §23 of the Arizona Constitution provides in

part:

Juries in criminal cases in which a sentence of death

or imprisonment for thirty years or more is authorized by

law shall consist of twelve persons. In all criminal cases

the unanimous consent of the jurors shall be necessary to

render a verdict...

The following statutory provision is also involved in

this case:

Ariz. Rev. Stat. §13-452 (1973). Degrees of murder.

A murder which is perpetrated by means of poison

or lying in wait, torture or by any other kind of wilful,

deliberate or premeditated killing, or which is committed

in avoiding or preventing lawful arrest or effecting an

escape from legal custody, or in the perpetration of, or

attempt to perpetrate, arson, rape in the first degree,

robbery, burglary, kidnapping, or mayhem, or sexual

molestation of a child under the age of thirteen years, is

murder of the first degree. All other kinds of murder are

of the second degree.

STATEMENT OF THE CASE

A. The Offense. . | .

On August 1, 1978, Lorimer Grove left Bisbee, Ari

zona, on a trip to Everett, Washington. Eight days later,

Mr. Grove’s body was found by the side of a highway,

near Prescott, Arizona. Tr. 2:340; 3:565; Tr. 2:286-287'. A

rope was tied around his neck. The medical examiner

concluded that Mr. Grove had died of ligature strangula-

tion. Tr. 2:361. Nothing else about the circumstances of his

death is known.

A few days later, a Ford automobile rented by peti-

tioner eight months earlier in Utah and never returned,

was found near the highway, thirty miles north of Flag-

staff, Arizona, and 150 miles from where Mr. Grove’s

body was found. Tr. 3:414-415; 453-454; 5:882, 1032-1033.

A homemade mirror device found inside the car was

identified at trial as similar to one seen at Mr. Grove’s

residence. Tr. 3:495; 2:343.

Petitioner was arrested in Utah on September 8, 1978,

for possession of a stolen automobile. Tr. 4:625, 626. At

| “Tr.” refers to the transcript of the guilt-innocence trial,

followed by the volume and page numbers cited. “Tr.” pre-

ceded by a date refers to transcripts of proceedings other than

the guilt-jnnocence trial, which are identified by date.

2 During this time, a statewide manhunt was being con-

ducted for the “Tison gang.” See Tison v. Arizona, 481 U.S. 137,

139-142 (1987); Tr. 3:409; 5:1035. The “Tison gang” escaped

from the Arizona State Prison on July 30, 1978, and on August

1, 1978, was believed to be travelling through the area where

Mr. Grove’s body was found, and where the abandoned Ford

was found. Tr. 5:900-901; 913-914.

the time of his arrest, petitioner was driving Mr. Grove’s

car and had his credit cards. Tr. 4:627-628; 683-685. Peti-

tioner had begun using the credit cards on August 2,

1978. Tr. 5:923, 945.

Shortly after his arrest, petitioner was visited by John

Duncan who had arranged with the police to talk to

petitioner and to provide them with any information

petitioner gave him.? Tr. 4:820, 850-851, 853. According to

Duncan‘, petitioner said that he would deny being in

Arizona, “particularly Tempe, Arizona and Prescott, Ari-

zona.” Tr. 4:825. This statement was made without refer-

ence to date, context or purpose.

No other evidence incriminated petitioner.

3 Duncan first met petitioner the day before he was

arrested when petitioner came to his former girlfriend’s house

where Duncan and his wife were staying. Tr. 4:818, 831. Dun-

can had fled to Utah from California to avoid going to prison.

Tr. 4:831. Duncan had recently been arrested in Utah on a

California fugitive warrant. Tr. 4:822. At the time he met peti-

tioner, Duncan was still awaiting extradition to California for

probation revocation, fugitive from justice, grand theft auto,

burglary and receiving stolen property charges. Tr. 4:829-830.

After meeting Schad, Duncan contacted a Utah police officer,

Ken Halterman, and told him that petitioner was driving a

stolen car. Tr. 4:819. Halterman denied that Duncan was his

informant, although Halterman told the Arizona authorities

that Duncan was. Tr. 4:646; 5:887. Halterman admitted that he

gave Duncan his unlisted home phone number, helped Duncan

obtain a reward from Mr. Grove’s credit card company, and

tried to help Duncan on his California charges by writing a

letter to the California authorities. Tr. 4:646-647, 650-651

4 Although Duncan testified that he immediately told Offi-

cer Halterman about this statement, Tr:853, Halterman testified

that he knew nothing about any connection between petitioner

and Prescott, Arizona until he was contacted by Arizona

authorities over a month later. Tr. 4:666.

B. The Trial.

Petitioner was indicted for the murder of Mr. Grove

under A.R.S. §13-452. J.A. at 2. That statute defines first

degree murder as “[a] murder which is [a] wilful, deliber-

ate or premeditated killing, or which is committed . . . in

the perpetration of, or attempt to perpetrate, .

robbery.”

The defense case at trial, like the state’s case, was

based on inferences drawn from circumstantial evidence.

No direct evidence existed that petitioner murdered Mr.

Grove. The defense argued that the circumstantial evi-

dence proved only that petitioner was a thief, not a

murderer. J.A. at 23.

The prosecutor argued from the same circumstantial

evidence that the jury could convict petitioner of either

premeditated murder or felony murder. J.A. at 6-7. Point-

ing to the easel where he had written the three elements

of premeditated murder and the two elements of felony

murder, the prosecutor explained to the jury the “two

types of first degree murder”:

On the left is premeditated murder. There are

three elements to that. One, that the defendant

caused someone’s death. Secondly, that he do

[sic] so with malice... [a]nd... attached to that

killing is a third element, that of premeditation

which simply means that the defendant contem-

plated that he would cause death, he reflected

upon that.

J.A. at 6. He then discussed the “other type of first degree

murd« , “what we call felony murder”:

It only has two components [sic] parts. One, that

a death be caused, and, two that death be

caused in the course of a felony, in this case a

robbery.

Id. The prosecutor then told the jury that “both types of

first degree murder apply.” J.A. at 7. He argued that the

murder was premeditated because the victim was stran-

gled with a rope and that the murder was felony murder

because the simple fact that the victim “was found with-

out his car, without his credit card, without the ring,

[showed] that he was the victim of a robbery.” Tr. 7:1349.

Underscoring the prosecutor’s argument, the judge

instructed the jury that “[flirst degree murder is murder

which is the result of premeditation” and also is

“[mJurder which is committed in the attempt to commit

robbery.” J.A. at 26. The jury was told that “[a]Jll 12 of you

must agree whether the verdict is guilty or not guilty.”

J.A. at 27. The jury was then given three forms of verdict,

guilty of first degree murder, guilty of second degree

murder and not guilty. J.A. at 27-28. The judge refused

defense counsel’s request to instruct the jury on the

lesser-included offenses of felony murder which were

supported by the evidence: robbery and theft. Tr. 7:1343.

The jury returned the verdict finding petitioner

guilty of “first degree murder”. J.A. at 29. Following the

aggravating/ mitigation hearing, the trial judge sentenced

petitioner to death. Tr. August 29, 1985:10.

C. The Appeal.

In affirming petitioner’s conviction and sentence, the

Arizona Supreme Court rejected petitioner’s constitu-

tional challenges to the single form of verdict and failure

to instruct on the lesser-included offense of felony mur-

der. Noting that petitioner’s arguments on the form of

verdict issue “have all been previously decided by this

Court and rejected”, the court stated that the single form

of verdict was not error “even though both premeditation

and felony murder were . . . submitted to the jury”

because there is only one crime of first degree murder in

Arizona. J.A. at 41. Acknowledging that the evidence

supported a conviction for robbery, the court similarly

rejected petitioner’s challenge to the failure to instruct on

the lesser-included offenses by reiterating its oft-stated

rule that “in Arizona there is no lesser-included offenses

to felony murder.” J.A. at 40.

+

SUMMARY OF ARGUMENT

This is a capital case. It is a case where this Court has

insisted on reliability at all stages of the proceedings. Beck

v. Alabama, 447 U.S. 625, 638 (1980), Woodson v. North

Carolina, 428 U.S. 280, 305 (1976). Of all places, this is

where the principle announced in In re Winship, that an

accused cannot be convicted except upon proof beyond a

reasonable doubt of every fact necessary to constitute the

elements of the crime with which he is charged, must be

accepted as the essential ingredient of due process. It is

also the place where the Sixth Amendment jury trial right

demands a fact-finding procedure which produces a reli-

able verdict of a capital defendant’s guilt.

Two long-standing Arizona rules combined to violate

petitioner’s constitutional right to a reliable verdict. First,

although Arizona purports to require the jury to unani-

mously agree on the verdict in capital cases, it includes

two conceptually and factually different offenses, pre-

meditated murder and felony murder, under the rubric of

first degree murder. If a prosecutor seeks conviction

based on alternative factual theories, Arizona procedure

permits the jury to convict when no more than six jurors

are convinced beyond a reasonable doubt as to what it

was petitioner did. This result is patently inconsistent

with the heightened degree of reliability required by due

process and the Sixth Amendment in capital cases and

cannot be tolerated where the defendant stands to lose

his life.

Next, after depriving petitioner of a unanimous ver-

dict, Arizona law denied him a jury instruction on his

sole defense presented at trial. It did so by mandating,

without explanation, that there are no lesser-included

offenses to felony murder. Thus, notwithstanding that, as

the Arizona Supreme Court recognized, the evidence

would have supported a conviction for the lesser-

included offense of robbery, petitioner’s jury was not

given that option. The jury’s only option was to convict

him of some kind of homicide or let him go. That

mechanically-applied rule violates the due process princi-

ples set forth in Beck v. Alabama.

+

ARGUMENT

I. ARIZONA'S PROCEDURE ALLOWING A JURY TO

CONVICT A CAPITAL DEFENDANT WITHOUT

AGREEMENT AS TO WHAT THE DEFENDANT DID

VIOLATES PETITIONER’S CONSTITUTIONAL

RIGHT TO A UNANIMOUS JURY VERDICT.

Arizona, like every other capital punishment state®,

requires a unanimous jury verdict in capital cases. Ariz.

> Way v. State, 155 Ala. 52, 46 So.2d 273 (1908); ARK.

CONST. Art. II, §10; Ashby v. State, 611 S.W.2d 512 (Ark. 1981);

Cal. Penal Code §1149 (Deering 1971); Colo.Rev.Stat.

§16-10-108 (1986); State v. Ralls, 167 Conn. 408, 356 A.2d 147

(1974); DEL. CONST., Art. I, §14; Del.Super.Ct.Crim.R. 31(a);

Fountain v. State, 275 A.2d 251 (1981); Fla.Crim.R.P. 3.440; Wil-

liams v. State, 438 So.2d 781 (1983); GA. CONST., Art I, 4 XI

(1989); Glass v. State, 250 Ga. 736, 300 S.E.2d 812 (1983); IDAHO

CONST. Art. I, §7 (1990); Ill.Rev.Stat. ch.38, §115-4 (1988);

People v. Maxey, 37 Ill.App.3d 905, 346 N.E.2d 51 (1976); Jackson

v. State, 490 N.E.2d 1115 (Ind. 1986); Ky.Rev.Stat.Chap. 29A.280

(1988); La.Code Crim.P. Art. 782 (1981); MD. CONST., Art. 21

(1981); Allew v. State, 77 Md.App. 537, 551 A.2d 156 (1989);

Markham v. State, 46 So.2d 88 (Miss. 1950); Mo.Crim.R.P., Rule

29.01 (1990); MONT. CONST. Art. II, §26; Mont.Code Ann.

§46-16-603(1)(1989); State v. Parker, 221 Neb. 570, 379 N.W.2d

259 (1986); Nev.Rev.Stat. §175.481 (1987); State v. Almy, 67 N.H.

274, 28 A.2d 372 (1892); State v. Gadson, 148 N.J.Super. 457, 372

A.2d 1143 (1977); N.M. CONST. Art. II, §12; Op. Att’y Gen. No.

72-31 (1972); N.C. CONST. Art. I, §24 (1984); State v. Diaz, 317

N.C. 545, 346 S.E.2d 488 (1986); Ohio Criminal Rule 31(A);

OKLA. CONST. Art.2, §19 (1981); ORE. CONST. Art. 1, §11

(1989); 42 Pa.C.S.A. R.Crim.P., Rule 1120; $.C. CONST. Art. 5,

§22 (1989); S.D.Cod.Laws, Title 23A-26-1(1988); Tenn.R.Crim.P.,

Rule 21 (1990-91); TEX. CONST. Art. V, §13; Tex.Code

Crim.P.Ann. §36.29; UTAH CONST. Art. 1, §10; VA. CONST.

Art. 1, §8; WASH. CONST. Art. 1, §22; Amend. 10; State v.

Stephens, 93 Wash.2d 186, 607 P.2d 304 (1980); 1 Wyom.Stat.

§7-11-501 (1987).

10

Const. art. 2, §23. For petitioner, however, Arizona’s rule

of jury unanimity became a hollow formalism. Because

the prosecutor sought conviction on alternative factual

theories of premeditated and felony murder, the jurors

were allowed to concur in a verdict finding that peti-

tioner committed “first degree murder” without ever

reaching unanimous agreement — or even majority con-

sensus — on the underlying facts constituting the elements

of the first-degree offense. This procedure violates peti-

tioner’s right to a unanimous jury verdict based on proof

beyond a reasonable doubt of every fact necessary to

establish the crime for which he was charged; it uncon-

stitutionally erodes the reliability of the verdict on which

his death sentence stands.

A. Jury Unanimity Is Constitutionally Required in

Capital Cases.

“In [In re] Winship, [397 U.S. 358, 364 (1970)], this

Court stated:

‘Lest there remain any doubt about the constitu-

tional stature of the reasonable-doubt standard,

we explicitly hold that the Due Process Clause

protects the accused against conviction except

upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which

he is charge’ Id., at 364 (emphasis added).”

Sandstrom v. Montana, 442 U.S. 510, 520 (1979); see also,

e.g., Francis v. Franklin, 471 U.S. 307, 313 (1985). “The

standard of proof beyond a reasonable doubt, said the

Court [in Winship], ‘plays a vital role in the American

scheme of criminal procedure,’ because it operates to give

‘concrete substance’ to the presumption of innocence, to

11

ensure against unjust convictions, and to reduce the risk

of factual error in a criminal proceeding. 397 U.S., at 363.”

Jackson v. Virginia, 443 U.S. 307, 315 (1979). “Winship

expressly held that the reasonable-doubt standard ‘is a

prime instrument for reducing the risk of convictions

resting on factual error’.” Ivan V. v. City of New York, 407

U.S. 203, 204 (1972), quoting Winship, 397 U.S. at 363. It

was “developed to safeguard men from dubious and

unjust convictions, with resulting forfeitures of life, lib-

erty and property,” Brinegar v. United States, 338 U.S. 160,

174 (1949), and is grounded on the “fundamental value

determination of our society that it is far worse to convict

an innocent man than to let a guilty man go free.” Wins-

hip, 397 U.S. at 372 (Harlan, J., concurring.)

By reducing the risk of factual error in the conviction,

the reasonable doubt standard not only promotes

reliability of the jury verdict, but also ensures community

confidence in the criminal justice system. “It is critical

that the moral force of the criminal law not be diluted by

a standard of proof that leaves people in doubt whether

innocent men are being condemned.” Id., 397 U.S. at 364.

This is another reason why “the Due Process Clause of

the Fourteenth Amendment must be held to safeguard

‘against dilution of the principle that guilt is to be estab-

lished by probative evidence and beyond a reasonable

doubt,’ ” Taylor v. Kentucky, 436 U.S. 478, 485-86 (1978),

quoting Estelle v. Williams, 425 U.S. 501, 503 (1976).

Historically as well as logically, there is a close con-

nection between the beyond-a-reasonable-doubt standard

and the rule requiring jury unanimity in criminal cases.

Although arising from other wellsprings prior to its full

12

emergence in the Fourteenth Century,® the unanimity

requirement subsequently came to be identified as a guar

antee of the standard of certainty expressed in the

beyond-a-reasonable-doubt formulation. For example, in

Sir Matthew Hale’s HISTORY OF THE COMMON LAW

OF ENGLAND, published posthumously in 1713 before

the beyond-a-reasonable-doubt standard was firmly

established, Hale defended the “excellent Order of Tria]

by Jury, which is far beyond the Trial by Witnesses

according to the Proceedings of the Civil Law” because

“it has all the Helps to investigate the Truth that the Civil

Law has, and many more. For as to Certainty, ... . It has

the unanimous Suffrage and Opinion of Twelve Men,

which carries in itself a much greater weight and l’repon

derance to discover the Truth of a Fact, than any other

Trial whatsoever.” Id., at 166-67 (1971). Writing two cen

turies later, after the beyond-a-reasonable-doubt rule had

become axiomatic,” Sir James Fitzjames Stephen

described the relationship more directly:

The justification of the [unanimity] rule,

now that the character of the jury has changed

from that of witnesses to that of judges of fact,

seems to be that it is a direct consequence of the

principle that no one is to be convicted of a

crime unless his guilt is proved beyond all rea-

sonable doubt. How can it be alleged that this

* See I] POLLOCK (SIR FREDERICK) & MAITLAND (FRE-

DERIC W.), THE HISTORY OF ENGLISH LAW BEFORE THE

TIME OF EDWARD | (2d ed., Cambridge University Press,

reissued & reprinted 1984).

? The reasonable-doubt rule “seems to have had its origin

no earlier than the end of the 1700’s and to have been applied

at first only in capital cases.” 9 WIGMORE (JOHN HENRY) 405

[2497] (Chadbourn re. 1981).

13

condition has been fulfilled so long as some of

the judges by whom the matter is to be deter-

mined do in fact doubt? . .. My own opinion is

that trial by jury has both merits and defects,

but that the unanimity required of the jurors is

essential to it. If that is to be given up, the

institution itself should be abolished. There is a

definite meaning in the rule that criminal trials

are to be decided by evidence plain enough to

satisfy in one direction or the other a certain

number of representatives of the average intel-

ligence and experience of the community at

large, but if some of the members of such a

group are of one opinion and some of another,

~ the resuit seems to be that the process has

proved abortive and ought to be repeated.

| STEPHEN (SIR JAMES FITZJAMES), A HISTORY OF

THE CRIMINAL LAW OF ENGLAND 304-05 (1883).

To be sure, this Court has held that jury unanimity is

not indispensable to the constitutionality of every crimi-

nal verdict. Johnson v. Louisiana, 406 U.S. 356 (1972); Apo-

daca v. Oregon, 406 U.S. 404 (1972). Like the exact size of

the jury, the unanimity requirement and other related

rules are amenable to modification that do not subvert

the essential functions of the right to jury trial. See Wil-

liams v. Florida, 399 U.S. 78 (1970). But the Court has

steadfastly insisted that those functions include

“assur[ing] the reliability of ... [the jury’s] verdict” and “

‘the very integrity of the fact-finding process,’ ” Brown v.

Louisiana, 447 U.S. 323, 334 (1980), quoting Linkletter v.

Walker, 381 U.S. 618, 639 (1965), by subjecting the evi-

dence of guilt to “evaluation by the sense of the comrhu-

nity,” Ballew v. Georgia, 435 U.S. 237, 238 (1978). So, where

reductions in the size of the jury, in the proportion ot

jurors required to vote to convict, or in both result in a

14

leaching away of sufficient confidence in the jury’s ver-

dict as a reliable determination of the facts on which

severe criminal penalties depend, the Fourteenth Amend-

ment Due Process line is reached. Johnson v. Louisiana, 406

U.S. at 362 (White, J., concurring [“substantial majority of

the jury” required to vote to convict]); id., at 366 (Black-

mun, J., concurring (“a 7-5 standard, rather than a 9-3 or

75% minimum, would afford me great difficulty” ]); Ballew

v. Georgia, supra (jury of five is too small); Burch v. Louisi-

ana, 441 U.S. 130 (1979) (nonunanimous jury of six is too

few). As the Court later observed in Brown v. Louisiana, “a

line must be drawn somewhere, . . . the constitutional

inviolability of that line must be scrupulously respected

lest the purpose and functioning of the jury be seriously

impaired,” 447 U.S. at 331, and in drawing the line, this

Court has given prominent recognition to the concern

that decreasing the number of jurors needed to vote for

conviction on a particular finding of fact “leads to less

accurate factfinding and a greater risk of convicting an

innocent person,” id., at 332.

It is against this background that we come to the

question of the constitutionality of a state practice which

allows a capital conviction and a death sentence to rest

upon two alternative factual findings neither of which

has to have obtained the assent of more than 6 out of the

12 members of the jury. Everything this Court has written

on the subject of criminal jury trials or the subject of the

death penalty points to a single answer to that question.

Reductions in the number of jurors who have to vote for

conviction have never been approved in a capital case; to

the contrary, the Court has taken care to distinguish the

cases at issue as noncapital. Williams v. Florida, 399 U.S. at

15

103 (“In capital cases, . . . it appears that no State pro-

vides for less than 12 jurors — a fact that suggests implicit

recognition of the value of the larger body as a means of

legitimating society’s decision to impose the death pen-

alty.”); Johnson v. Louisiana, supra (state constitutional pro-

vision required unanimous jury verdict in capital case);

Apodaca v. Oregon, supra (same). See also Burch v. Louisi-

ana, 441 U.S. at 136. This is in keeping with the Court's

consistent recognition that in capital cases both the guilt

and penalty determinations must be structured to assure

heightened reliability, not to permit findings whose

reliability is diminished. Ford v. Wainwright, 477 U.S. 399,

411 (1986); Caldwell v. Mississippi, 472 U.S. 320, 343 (1985)

(O’Connor, J., concurring); Beck v. Alabama, 447 U.S. 625,

638 (1980); Lockett v. Ohio, 438 U.S. 586, 605 (1978) (piu-

rality opinion); Gardner v. Florida, 430 U.S. 349, 357-358

(1977); Woodson v. North Carolina, 428 U.S. 280, 305 (1976)

(plurality opinion). To ensure the requisite degree of

reliability, this Court has required additional safeguards

not present in noncapital cases. Booth v. Maryland, 482

U.S. 496, 509 n.12 (1987); Reid v. Covert, 354 U.S. 1, 45-46

(1957) (Frankfurter, J., concurring) (“It is in capital cases

especially that the balance of conflicting interests must be

weighted most heavily in favor of the procedural safe-

guards of the Bill of Rights”); id. at 77 (Harlan, J., concur-

ring).

This Court has also accepted without question that

the degree of confidence that society should have in the

correctness of factual conclusions stands in direct relation

to the potential harm caused by an incorrect factual deter-

mination. E.g., Bell v. Burson, 402 U.S. 535, 540 (1971);

Winship, 397 U.S. at 371-374 (Harlan, J., concurring). Jury

16

unanimity ensures the protection of the reliability con-

cerns which are paramount in capital cases.* It requires

the state to prove the facts on which a defendant is

convicted beyond a reasonable doubt to the minds of all

the jurors. The reasonable doubt standard embodied in

the due process clause and effectuated by jury unanimity,

thus, “serves to allocate the risk of error .. . and to

indicate the relative importance attached to the ultimate

decision.” Addington v. Texas, 441 U.S. 418, 423 (1979).

Jury unanimity also inspires community confidence that a

guilty verdict in the most serious of crimes will not be

reached without ove.coming the reasonable doubts of all

the jurors. In short, jury unanimity:

is an accepted, vital mechanism to ensure that

real and full deliberation occurs in the jury

room, and that the jury’s ultimate decision will

reflect the conscience of the community.

McKoy v. North Carolina, 110 S.Ct. 1227, 1238 (1990) (Ken-

nedy, J., concurring).

This Court should now say what it has implied but

left unsaid in an unbroken string of cases, and what every

capital punishment state has recognized: jury unanimity

in capital cases is essential to our notions of reliability,

accuracy and community faith in jury verdicts embodied

* Empirical research demonstrates that jury unanimity

produces more thorough deliberations with more participation

by minority viewpoints. Hastie, R., Penrod, S., and Pennington,

N., Inside the Jury, 238 (1983); Hans, V.P., and Vidmar, N.

Judging the Jury, 171-175 (1986).

17

in the due process clause and Sixth Amendment right to

jury trial.’

B. This Is Not a Unanimous Verdict.

The verdict in this case cannot be squared with the

constitutional requirement of jury unanimity in guilt/

innocence determinations in capital cases. That require-

ment includes the unanimous agreement of the jurors

upon some version of the facts which comprises every

element of the capital offense. “The unanimity rule .

requires jurors to be in substantial agreement as to just

what a defendant did as a step preliminary to determin-

ing whether the defendant is guilty of the crime

charged.” United States v. Gipson, 553 F.2d 453, 457-58 (Sth

Cir. 1977).!° “Unanimity . . . means more than a con-

clusory agreement that the defendant has violated the

statute in question; there is a requirement of substantial

agreement as to the principal factual elements underlying

a specified offense.” United States v. Ferris, 719 F.2d 1405,

1407 (9th Cir. 1983). See also United States v. Beros, 833

F.2d 455, 461 (3rd Cir. 1987).

In petitioner’s case, no such agreement was

demanded. Instead, the prosecutor was permitted to

% Even if jury unanimity in a capital case is not a federal

constitutional right, this same result should obtain. Once a

given rule has weaved its way into the system through which

criminal justice is administered, it cannot be ignored by a state.

Duncan v. Louisiana, 391 U.S. 145, 149-50 n.14.

‘© Gipson was a federal noncapital case where the federal

unanimity requirement applies Johnson v. Louisiana, 406 US.

356 (1972); Apodaca v. Oregon, 406 U.S. 404 (1972).

18

obtain a conviction by persuading half the jury of each of

two independent, alternative factual scenarios. The pros-

ecutor’s closing argument was a classic instance of

attempted persuasion by simplification. It presented two

distinct theories of first-degree murder, each resting on a

single salient fact declared to be self-evident. The two

theories might have been drawn from the same or from

wholly different chains of events.

The prosecutor graphed them for the jury on an

easel, setting out the “two ways for first degree murder to

be committed.” J.A. at 6. The first was “premeditated

murder,” which had “three elements” including “premed-

itation, which simply means that the defendant contem-

plated that he would cause death.” Id. The “other type of

first degree murder is what we call felony murder,” hav-

ing “only .. . two component parts”. Id.

“In this case,” the prosecutor argued, “both types of

first-degree murder apply.” J.A. at 7. The argument for

premeditated murder was based exclusively on a discrete

factual proposition: that Mr. Grove was strangled with a

thin rope and “strangling the. . . life out of someone with

a rope is probably one of the best examples we can think

of of premeditation.” Tr. 7:1349. The argument for felony

murder was based exclusively on a different factual prop-

osition: that petitioner’s connection with the murder was

proved by his possession of Mr. Grove’s personal effects -

car, credit cards, etc.; ergo Mr. Grove “was the victim of a

robbery.” Id. Both of these independent factual proposi-

tions were refined to a filament of logic. Alternative

possible factual scenarios, such as an accidental killing by

strangulation in the course of a medically recognized

form of deviant sex play (which would be second degree

19

murder in Arizona) or a malicious, but undeliberated,

murder followed by the formation and action upon an

intent to steal the victim’s personal effects (also second

degree murder) were ignored as insufficiently elegant.

Because of either of two independent facts — strangula-

tion and Petitioner’s possession of Mr. Grove’s effects -

the prosecutor argued that “in this case there really is no

question that a first degree murder was committed, and |

won't discuss that any further with you.” Tr. 7:1349. See

also J.A. at 6-7, turning the rest of the summation to

“what the issue in this case is” - “the defense . . . that

maybe somebody else did it.”

The constitutional trouble, however, is that under

Arizona procedure the prosecutor needed to convince no

more than six jurors of either of the two alternative

factual propositions on which petitioner’s conviction and

death sentence depend. If six jurors accepted and six

rejected the use-of-a-rope-as-premeditation-per-se logic

and six accepted while six rejected the possession-of-

recently-stolen-personal-property logic, the cumulation

of two less than majority votes by the jury would require

a conviction despite the lack of any basis for confidence

that even one more juror believed than disbelieved a set

of facts necessary to establish petitioner’s guilt of first

degree murder.

This lack of factual agreement by the jury defeats the

very purpose of the constitutional right to jury trial.

Without some assurance that there has been a group

deliberation resulting in a consensus about those facts the

state has proven beyond a reasonable doubt which satisfy

the statutory definition of the elements of the crime

charged, the reliability requirement of due process and

20

the Sixth Amendment cannot be satisfied. Here, no such

assurance was provided. In essence, the jury was allowed

to convict petitioner of capital murder on no more than a

general agreement that he was a criminal. This is consti-

tutionally impermissible in any case. Lanzetta v. New Jer-

sey, 306 U.S. 451 (1939) (statute criminalizing being a

“gangster” violates due process). In a capital case, it is

unconscionable.

Il. ARIZONA’S PROCEDURE VIOLATED THE

CLEAR MANDATE OF BECK V. ALABAMA BY

DENYING PETITIONER’S JURY THE OPTION OF

CONVICTING HIM ON A NECESSARILY

LESSER-INCLUDED OFFENSE.

While the State took advantage of the absence of

direct evidence at petitioner’s trial by presenting alterna-

tive theories of guilt without requiring the jury to

endorse either theory, it cut off petitioner’s opportunity

to use a similar approach in his defense. The trial evi-

dence supported the inference that petitioner was not

guilty of felony murder but guilty of the lesser-included

offenses of robbery or theft. Petitioner could not present

those alternative inferences, however, because the court

did not instruct the jury on robbery or theft. This error

alone would require reversal of petitioner’s capital con-

viction on due process grounds. The absence of lesser-

included instructions together with the use of the pro-

cedures that lessened the State’s burden of proving either

of its alternative theories stacked the deck entirely in

favor of the state, unconstitutionally undermining the

reliability of the verdict.

21

A. The Pertinent Evidence.

The only substantial evidence against Petitioner in

this case was his possession of the victim’s property. This

evidence did not implicate petitioner directly in the

homicide. Petitioner could have found Mr. Grove alive by

the side of the road and forcibly taken his car and credit

cards from him. This would have made petitioner guilty

of robbery but not homicide. Or petitioner could have

come across Mr. Grove’s dead body, or found his car

unattended, and taken his car and credit cards. This

would have made him guilty of theft, but not robbery or

homicide. Petitioner’s defense at trial was that the evi-

dence at most established that petitioner had stolen Mr.

Grove’s property. J.A. at 23.

B. The Pertinent Criminal Statutes.

The pertinent Arizona statute defining felony murder

reads, in pertinent part, as follows:

A murder which is . . . committed in... the

perpetration of ... robbery... is murder of the

first degree.

A.R.S. §13-452. Petitioner argued before the Arizona

courts that he had a due process right, under Beck v.

Alabama, 447 U.S. 625 (1980), to jury instructions that

would have permitted a conviction for robbery or theft as

an alternative to a felony murder conviction. Theft is a

lesser-included offense of robbery under Arizona law.

State v. Celaya, 135 Ariz. 248, 251-52, 660 P.2d 849, 852-53

(1983).

22

C. The Tiéal Court’s Charge.

The trial court refused to instruct on robbery, or on

theft. J.A. at 5; Tr. 7:1343. In essence, this ruling revoked

petitioner’s sole defense of guilt on a crime less than

capital murder and forced him to argue that, of the two

choices available to the jury, guilty of murder or not

guilty, they should find the latter.

D. The Arizona Supreme Court’s Decision.

The Arizona Supreme Court recognized that the evi-

dence would have supported a conviction for robbery

J.A. at 40. The same evidence necessarily would also have

supported a theft conviction under Arizona law. Celaya,

supra. The Arizona Supreme Court nevertheless rejected

petitioner’s contention by asserting the oft-repeated

“rule” that “in Arizona there is no lesser-included offense

to felony murder.” Id.

The court cited three cases in support of this “no

lessers” rule. Two of these cases State v. LaGrand, 153

Ariz. 21, 734 P.2d 563, cert. denied 484 U.S. 872 (1987) , and

State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670, cert.

denied 474 U.S. 975 (1985), held that felony murder has no

lesser-included offenses because the underlying felony

supplies the mens rea necessary to satisfy the premedita-

tion element of first degree murder. This is a non sequitur.

It offers no explanation for why the underlying felony is

not a lesser-included offense when there is a factual dis-

pute regarding whether the defendant caused a death in

23

the course of committing the felony.'! The third case

cited, State v. Leslie, 147 Ariz. 38, 48, 708 P.2d 719, 729

(1985), held in a single sentence that burglary is not a

lesser-included offense of felony murder, citing this

Court’s decision in United States v. Garrett, 471 U.S. 773

(1985). Garrett, which held that drug importation and

“continuing criminal enterprise” are not the same crime

for double jeopardy purposes, obviously lends no sup-

port to the rule. See State v. Leslie, 147 Ariz. at 50-51, 798

P.2d at 731-732 (Feldman, J., specially concurring) (Gipson

“unrelated to the Beck principle”; because evidence

would support verdict for underlying felony but not fel-

ony murder, underlying felony instruction should have

been given).

E. The Command of Due Process.

In a capital case, due process requires a State to

permit the jury to consider a verdict of guilt of a lesser

included non-capital offense, when the evidence would

have supported such a verdict. Beck v. Alabama, 447 U.S.

625 (1980). The “unavailability of a lesser included

'! As between felony murder and robbery, the only dis-

puted issue of fact was whether petitioner killed the victim. As

between robbery and theft, the only disputed issue of fact was

whether petitioner forcibly took the victim’s property. Where

“the charged greater offense requires the jury to find a dis-

puted factual element which is not required for conviction of the

lesser-included offense,” the jury must have the option of

convicting defendant on that lesser offense. State v. Dugan, 125

Ariz. 194, 195, 608 P.2d 771, 772 (1980), quoting Sansone v.

United States, 380 U.S. 343, 350 (1965).

24

instruction enhances the risk of an unwarranted convic-

tion” and “diminish[es] the reliability of the guilt deter-

mination” which “cannot be tolerated in a case in which

the defendant's life is at stake.” Id., 447 U.S. at 637-638.

The goal of the Beck rule [thus] . . . is to eliminate the

distortion of the factfinding process that is created when

the jury is forced into an all-or-nothing choice between

capital murder and innocence.” Spaziano v. Florida, 468

U.S. 447, 455 (1984); see also Hopper v. Evans, 456 U.S. 605,

610 (1982) (Beck requires jury instruction on lesser

included offense where evidence warrants instruction

and, without instruction on lesser, “a jury might convict a

defendant of a capital offense because it found that the

defendant was guilty of a serious crime.”).

Beck and Spaziano prohibited states from enforcing

rules of law that diminished the rationality and reliability

of capital verdicts by barring “third option” jury instruc-

tions. Beck, 447 U.S. at 637; Spaziano, 468 U.S. at 456. The

Arizona “no lessers” rule arbitrarily diminishes the

reliability of the result in precisely the same fashion as

the practices at issue in Beck and Spaziano:

a. In Beck, this Court began its analysis by explain-

ing that under Alabama law, the capital offense of “rob-

bery . . . when the victim is intentionally killed by the

defendant” was established by felony murder plus proof

of intent to kill. Thus “[flelony murder is . . . a lesser

included offense of the capital crime of robbery-inten-

tional killing.” An Alabama statute prohibited instruc-

tions on lesser-included offenses in capital cases. But the

Court held that the application of the Alabama statute

violated due process.

25

b. In Spaziano, this Court held that the defendant

was not entitled to the benefit of both a lesser-included

offense instruction and an expired period of limitations

on the lesser offenses. Spaziano, 468 U.S. at 454. Seven

members of the Court agreed that the Constitution

required the state to give the defendant the option of

waiving the state-law statute of limitations, so that the

jury could be instructed on the lesser-included offenses.

See id. at 456-57; id. at 490 (Stevens, J., concurring in part

and dissenting in part); id. at 467 (White, J., concurring in

part and concurring in the judgment).

Here, as in Beck and Spaziano, the evidence would

have permitted the jury to find that petitioner had com-

mitted a violent lesser-included felony, but not a capital

murder. As the Arizona Supreme Court recognized, the

jury rationally could have found that petitioner robbed

Mr. Grove but that the State had not proved the addi-

tional element - death in the course of the felony -

necessary for felony murder. J.A. at 40. This state of facts

would have entitled petitioner to a robbery instruction

_(and in turn to a theft instruction) under all of the ordi-

nary rules of lesser-included offense instructions

accepted in Arizona, see State v. Celaya, supra, 660 P.2d at

852, and elsewhere, see Schmuck v. United States, 109 S.Ct.

1443, 1450 (1989), except for a wholly arbitrary unex-

plained ipse dixit pronouncement by the state Supreme

Court saying simply “felony murder has no lessers.”

There is no greater justification for subordinating the

demands of due process as perceived in Beck to such a

state-law fiat than there was in Beck itself or in Spaziano.

Petitioner’s due process rights have been violated

whether or not robbery is technically a “lesser-included

26

offense” of felony murder under Arizona law. State

courts are the ultimate arbiters of the meaning of state

law, but that does not license them to manipulate it so as

to defeat federal constitutional commands. Sandstrom v.

Montana, 442 U.S. 510, 516-17 (1979); McKoy v. North

Carolina, 109 S.Ct. 1227, 1232 (1990). The principle of Beck

does not depend on technicalities of state law. Beck

instead teaches that technical state rules governing

instructions on lesser-included offenses must give way to

the due process demand for enhanced reliability and

rationality in capital verdicts.

In the analogous context of double jeopardy limits on

successive prosecutions, this Court held without dissent

that a defendant’s conviction for felony murder based on

a killing in the course of an armed robbery barred a

subsequent prosecution against the same defendant for

the robbery. Harris v. Oklahoma, 433 U.S. 682 (1977). Under

the Oklahoma felony murder statute, as under Arizona

law in petitioner’s case, the State necessarily had to prove

all of the elements of robbery in the felony murder pros-

ecution. Under these circumstances, the Court “treated a

killing in the course of a robbery as a separate offense,

and the robbery as a species of lesser included offense.”

Illinois v. Vitale, 447 U.S. 410, 420 (1980). See also Payne v.

Virginia, 468 U.S. 1062 (1984) (per curiam). In precisely

the same way, the robbery in this case is “a species of

lesser included offense” for purposes of due process. That

analysis is necessary here to vindicate Beck’s concern for

reliability of results in capital cases.

The jury in petitioner’s case was denied the “third

option” of convicting petitioner of an offense, supported

by the evidence, which lies between a capital conviction

27

for felony murder and an acquittal. No valid reason exists

for denying the jury this option. Its forced choice on a

capital charge cannot be squared with the due process

principles enunciated by this Court in Beck.

+

CONCLUSION

These two constitutional violations, mechanically

applied under Arizona law, exacerbate each other. The

state in petitioner’s case was not only relieved of the

burden of obtaining a unanimous verdict; but the jury

was allowed no other option than to find petitioner guilty

of some kind of homicide or acquit him. The procedures

used to secure petitioner’s conviction, upon which his

death sentence is based, in no way meet the standards of

reliability demanded by this Court in capital cases. The

Judgment of the Arizona Supreme Court should be

reversed.

Respectfully submitted,

JouHNn M. BaiLey

Joun R. HANNAH

*Denise I. YOUNG

Arizona Capital

Representation Project

Arizona State University

College of Law

Tempe, Arizona 85287

(602) 965-8185

Attorneys for Petitioner

“Counsel of Record