# Petitioners Brief — Schad v. Arizona

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0121%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 624

## Text

——

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. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0121%3A05. Public record. Not legal advice.