Respondents Brief — Schad v. Arizona

BEST AVAILABLE COPY

QUESTIONS PRESENTED FOR REVIEW

1. The Sixth Amendment requires states to provide

for trial by jury in criminal matters involving serious

offenses. In federal criminal trials, that includes a require-

ment that the jurors return a unanimous verdict.

The questions presented are:

A. Whether petitioner waived any right to

unanimity by failing to request a specific verdict

form?

B. Whether the unanimous-verdict doctrine

applies to state capital offenses?

C. Whether the verdict in this case satisfied the

unanimity doctrine described in Johnson v. Loui-

siana and Apodaca v. Oregon?

D. Whether the specific-unanimity doctrine is

applicable to the states in a capital case?

E. Whether the Arizona first-degree murder

Statute complies with the specific-unanimity

doctrine if that doctrine is applicable to the

states?

F. Whether the facts of this case render harm-

less any error that might be associated with the

absence of a specific-unanimity instruction and

verdict form?

2A. Whether petitioner’s failure to seek direct

appellate review of the theft-as-a-lesser-included-offense-

of-robbery issue constitutes a waiver of that issue?

2B. Whether robbery is a lesser-included offense of

first-degree murder under the Statutory-elements test as

applied to the Arizona first-degree murder statute?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......... 2... ccccceeceees i

TABLE OF CASES AND AUTHORITIES............ iv

STATEMENT OF THE CAGE... .cccccccesacccsenes 1

SUMMARY OF ARGUMENTS ..................-5. 5

ARGUMENTS

IA. PETITIONER DID NOT RAISE ANY JUROR-

UNANIMITY ISSUE AT EITHER OF HIS TWO

TRIALS OR AT ANY TIME PRIOR TO HIS

SECOND STATE APPEAL. HE IS THEREFORE

NOT ENTITLED TO REVIEW OF THIS ISSUE

ABSENT A DEMONSTRATION OF “PLAIN

8 merrier 8

IB. THE UNANIMITY DOCTRINE IS A FEDERAL

RIGHT NOT APPLICABLE TO THE STATES.. 11

IC. THE VERDICT IN THIS CASE SATISFIED THE

UNANIMITY DOCTRINE DESCRIBED IN

JOHNSON V. LOUISIANA AND APODACA V.

ORBGON . .. « .00.00.06:6560in ee nleinneennn 12

ID. THE SPECIFIC-UNANIMITY DOCTRINE

SOUGHT BY PETITIONER IS A RULE OF

PROCEDURE FOR FEDERAL TRIALS AND IS

NOT APPLICABLE TO THE STATES......... 14

lk. IF THE SPECIFIC-UNANIMITY DOCTRINE IS

APPLICABLE TO THE STATES, THE ARI-

ZONA FIRST-DEGREE MURDER STATUTE IS

CN FUE, CRUD his bc dcceaceeseccces 15

ili

TABLE OF CONTENTS - Continued

Page

IF. EVIDENCE THAT THIS MURDER WAS COM-

MITTED BOTH WITH PREMEDITATION AND

DURING THE COURSE OF A FELONY IS

OVERWHELMING. IT WAS ALSO UNCON-

TESTED AT TRIAL. THESE FACTS RENDER

HARMLESS ANY ERROR THAT MIGHT BE

ASSOCIATED WITH THE LACK OF A SPE-

CIFIC-UNANIMITY INSTRUCTION AND VER-

Se Rasekes 24

IIA. PETITIONER’S FAILURE TO SEEK DIRECT

APPELLATE REVIEW OF THE THEFT-AS-

A-LESSER-INCLUDED-OFFENSE-OF-ROB-

BERY ISSUE CONSTITUTES A WAIVER OF

THAT ISSUE IN THIS COURT............... 27

IIB. UNDER THE STATUTORY-ELEMENTS TEST

AS APPLIED TO ARIZONA REVISED STAT-

UTES §§ 13-451 AND 452, ROBBERY IS NOT A

LESSER-INCLUDED OFFENSE OF FIRST-

28

CONCLUSION

iv

TABLE OF CASES AND AUTHORITIES

Page

CASES

Apodaca v. Oregon, 406 U.S. 404, 92 S. Ct. 1628, 32

S F & |. Ore passim

Beck v. Alabama, 447 U.S. 625, 100 S. Ct. 2382, 65

S yy | « SS Rr 28, 31, 32, 33

Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60

SS EERO NEA CE ee ng eee 13

Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed.

ER RS RT Spl Lk HT ee Pa 27

Cardin v. State, 73 Md. App. 200, 533 A.2d 928

Se ME, HPP eu had edvtceoescacccnsnededcsesss 21

Chapman v. California, 386 U.S. 18, 87 S. Ct 824, 17

I a wee 25

Costarelli v. Massachusetts, 421 U.S. 193, 95 S. Ct.

ee ee i ecdecaeenctes 27

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20

Sc MO hn i pi 12, 13

Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288

Es ri ha Ey SE Pe (2 en ioe ee 16

In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed.

BER LED Sar CSE ae mE, el eee 12

Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32

RM & Ff 3 Mr errr Terre ee passim

Keeble v. United States, 412 U.S 205, 93 S. Ct. 1993,

REID nS ar 2 eae ee 33

People v. Adcox, 47 Cal. 3d 207, 253 Cal. Rptr. 55,

ee so os Face ep uhbeneeue be cikean' 17

Vv

TABLE OF CASES AND AUTHORITIES - continued

Page

People v. Chavez, 37 Cal. 2d 656, 234 P.2d 632 (Cal.

SR NS 5S Saban ce vend dade ge Gddeniactnsick ce es 17, 22

People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903) .16, 17

People v. Travis, 170 Ill. App. 3d 873, 525 N.E.2d

Pe ES CaS uth a Gacadas cuiad Se cucsekceiee cou 16

Pope v. Illinois, 481 U.S. 497, 107 S. Ct. 1918, 95

in” I Se 10

Rice v. State, 311 Md. 116, 532 A.2d 1357 (Md.

PKG kek weeks DORR s CAs kbs Nad eek te bode ke idwae 20

Roberts v. Louisiana, 428 U.S. 325, 96 S. Ct. 3001, 49

ee, ARS SR a a ea ps 33

Scarborough v. United States, 522 A.2d 869 (D.C.

SE NS Savi Ce dab cb ena Vike Cake oel hci 25

Schmuck v. United States, 489 U.S. 705, 109 S. Ct.

1443, 103 L. Ed. 2d 734 (1989).............. 8, 29, 31

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

eS ee Ce ee Eee eC Ten Pe 9, 22, 23, 26

Neos peu sePee bashers ts ecb nee+ odeeesdanecnde 13, 18, 20

State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982) .17, 22

State v. Berndt, 138 Ariz. 41, 672 P.2d 1311 (1983) .18, 23

State v. Boots, 308 Or. 371, 780 P.2d 725 (1989)....... 9

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

(ie kent 64 1hO8 be Ue eeeee td eniueé45 0 Ne bbeemennan: 9, 26, 29

State v. Duncan, 312 N.W.2d 519 (Iowa 1981)..... 16, 20

State v. Edwards, 163 Conn. 527, 316 A.2d 387

a 0 Mee ano «6 alks-c oe OR e dc ak Ce cee 20

vi

TABLE OF CASES AND AUTHORITIES - continued

Page

State v. Encinas, 132 Ariz. 493, 647 P.2d 624

DE ere a Os ne ek a A 7, 9, 18, 32

State v. Hallman, 137 Ariz. 31, 668 P.2d 874 (1983) .... 18

State v. Hazelett, 8 Or. App. 44, 492 P.2d 501 (1972) .16, 20

State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) ..... 34

State v. King, 67 Ariz. Adv. Rep. 56 (Ct. App., Aug.

PN Ete i0e na V okies deans dee Nebdeedekdn yeu 34

State v. Kinkade, 147 Ariz. 250, 709 P.2d 884 (1985)... . 29

State v. LeGrand (Walter), 153 Ariz. 21, 734 P.2d 563

EC RAI ERE me Pe Pa Ie Pe DIL DOYS Sh Lies eae 32

State v. Lopez, 163 Ariz 108, 786 P.2d 959 (1990)..... 18

State v. Mounce, 150 Ariz. 3, 721 P.2d 661 (Ct. App.

SE beudauubuGds puddenihe cab eee tices cel 29, 32

State v. Poehnelt, 150 Ariz. 136, 722 P.2d 304 (Ct.

SIME LS StS Cah s Wuisdwiases ceeenuaeeaeeeekcass 29

State v. Sanchez, __ Ariz. __, 797 P.2d 703 (Ct.

EN S455 cow aeaveer enna kidhusesnscberss co5és 26

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

State v. Schad, 142 Ariz. 619, 691 P.2d 710 (1984) .... 3

State v. Schad, 129 Ariz. 557, 633 P.2d 366 (1981)..... 3

State v. Smith (Edward), 160 Ariz. 507, 74 P.2d 811

ee ee aa en a ee 4 eae 18

State v. Smith (Roger), 136 Ariz. 273, 665 P.2d 995

RRs abia hen as Uhan nents sceddavense coke 18, 22

vii

TABLE OF CASES AND AUTHORITIES - continued

Page

State v. Tims, 143 Ariz. 196, 693 P.2d 333 (1985)..... 29

State v. Vickers, 138 Ariz. 450, 675 P.2d 710 (1983)..... 7

State v. Wilson, 220 Kan. 341, 552 P.2d 931 (1976) .... 26

State v. Woratzeck, 134 Ariz. 452, 657 P2d 865

PO AIRE cS aii ats ae 10

Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95

at Ff AR RT ge 24

United States v. Bedonie, 913 F.2d 782 (10th Cir.

WEA 54 4 SoS dkkMG ERNE oeSeateccuacnkes 6, 8, 23, 26

United States v. Duncan, 850 F.2d 1104 (6th Cir.

CN 650 < lL snudadususeulccnsss beak ud oues. eee

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

United States v. North, 910 F.2d 843 (D.C. Cir. 1990)..... 7

United States v. Payseno, 782 F.2d 832 (9th Cir.

MRSA SUN GASS Ge adkes Daveauecudhecleeb ek <a: 5, 8

United States v. Peterson, 768 F.2d 64 (2d Cir. 1985) ..9, 14

United States v. Schiff, 801 F.2d 108 (2d Cir. 1986) .... 23

Ward v. State, 758 P.2d 87 (Alaska 1988)............. 20

Wells v. Commonwealth, 561 S.W.2d 85 (Ky. 1978). .16, 20

Williams v. Florida, 399 U.S. 78, 100, 90 S. Ct. 1893,

= - . Sees 11, 12

AUTHORITIES

PIE isos 0s sek vccwevivucoeccect cecc: 18

ES a ee ee ee 27

Viii

TABLE OF CASES AND AUTHORITIES - continued

Page

Arizona Constitution

ee Baie ee a eee eee ad 6, 13

Arizona Penal Code

8 IT RE Arg ig fies 17

Arizona Revised Statutes Annotated

(Repealed October 1, 1978)

a. nee eehed ead ccakee 16, 21, 23, 30, 35

ee eh We eee da wl nee hiek 16, 21, 23, 30, 35

ee tea on 6 Fad wey ee aed @tieade 16

RES, <n e e yae enE aEOR 23

Arizona Rules of Criminal Procedure

Nee cwce wean 29

Jury Unanimity-Mode of Offense,

i 7

Federal Rules of Criminal Procedure

IER Ri an AN aa 6, 14, 15, 18

United States Constitution

Sixth Amendment ........ 6, 11, 13, 14, 15, 18, 19, 34

Fourteenth Amendment.............. 6, 11, 13, 15, 35

STATEMENT OF THE CASE

On August 9, 1978, a highway worker discovered a

body in some bushes near the roadway south of Prescott,

Arizona. (R.T. of June 19, 1985, at 287.) The body was in

an advanced stage of decomposition reflecting that death

had occurred up to a week before the discovery. (R.T. of

June 20, 1985, at 375.) An autopsy revealed that the cause

of death was asphyxia due to a rope found tied around

the neck. ‘R.T. of June 19, 1985, at 361.) The circumference

of the loop in the rope measured 10-1/2 inches. (R.T. of

June 20, 1985, at 373.) The body was not identified at that

time.

On September 8, 197_, Detective Halderman of the

Salt Lake City Police Department received information

that Edward Schad (hereinafter petitioner), a probationer,

was in the city and in possession of a stolen automobile.

(R.T. of June 21, 1985, at 634.) Petitioner was arrested the

next day driving a Cadillac registered to Lorimer Grove,

a 74-year-old resident of Bisbee, Arizona. (Id.) From peti-

tioner, Halderman recovered credit card receipts in the

name of Larry Grove and a New York traffic citation

issued to Edward Schad. (Id. at 641.) Inquiries into the

whereabouts of Larry Grove led to the final identification

of the body discovered near Prescott, Arizona. Petitioner

was now a suspect in a murder case.

Several factors supported that suspicion. On August

3, 1978, Officer Richardson of the Arizona Highway

Patrol had discovered an abandoned Ford north of Flag-

staff, Arizona. (R.T. of June 20, 1985, at 454-57.) This

vehicle had been rented by petitioner in Utah on Decem-

ber 31, 1977, and never returned. (Id. at 414.) It was

reported stolen on January 3, 1978. (Id. at 416.) When

information linked Schad with the murder of Larry

Grove, the police searched the impounded Ford. In-the

trunk of that vehicle, they found a mirror device that Mr.

Grove had invented to assist in maneuvering his car to

attach his travel trailer. (R.T. of June 19, 1985, at 342-43;

R.T. of June 20, 1985, at 495.) This discovery linked peti-

tioner to Mr. Grove.

Mr. Grove had been murdered sometime between

August 1, when he left Bisbee to visit his sister in Wash-

ington state, and August 9, when his body was discov-

ered. When petitioner was arrested 1 month later, he was

in possession of Mr. Grove’s credit cards. (R.T. of June 21,

1985, at 823.) He also possessed a number of credit card

receipts reflecting charges to those cards. Expert wit-

nesses testified that petitioner signed those receipts in the

name of Larry or Lorimer Grove. (R.T. of June 25, 1985, at

945.) Testimony established that petitioner began using

Grove’s credit cards in Benson, Arizona, on August 2,

1978, the day after Mr. Grove left Bisbee, Arizona,and

continued to charge to those cards as he travelled back

and forth across the United States until September 7,

1978, in Salt Lake City, the day before he was arrested.

(R.T. of June 25, 1985, at 976.)

At the time of petitioner’s arrest, his girlfriend was

wearing a diamond ring she said came from petitioner.

That ring was identified at trial as belonging to Mr.

Grove. (R.T. of June 21, 1985, at 783; R.T. of June 20, 1985,

at 574.)

Petitioner was stopped for speeding in New York

while driving Mr. Grove’s Cadillac. When he was unable

to provide registration for that vehicle, he explained that

he was transporting the vehicle for an elderly gentleman

named Larry Grove. (R.T. of June 20, 1985, at 553.)

In addition, petitioner made statements to John Dun-

can that implicated him in the murder. He told Duncan

that the Cadillac was stolen and that he would deny

being in Arizona, particularly Tempe and Prescott. He

also told Duncan to destroy any and all credit card

receipts that he could find in petitioner's billfold. (R.T. of

June 21, 1985, at 819, 824, and 825.)

The Yavapai County Grand Jury charged petitioner

with one count of first-degree murder. (J.A. at 2.) The first

trial took place in 1979, and resulted in a conviction of

first-degree murder and imposition of the death penalty.

The Arizona Supreme Court affirmed both the conviction

and the sentence. State v. Schad, 129 Ariz. 557, 633 P.2d

366 (1981), cert. denied, Schad v. Arizona, 455 U.S. 983

(1982). Petitioner did not raise juror unanimity or lesser-

included offense as issues in that appeal.

Petitioner filed a petition for post-conviction relief

which led to the grant of a new trial. The Arizona

Supreme Court held that the trial court’s failure to define

robbery was fundamental error when robbery was the

underlying felony upon which the first-degree murder

conviction was premised. State v. Schad, 142 Ariz. 619, 691

P.2d 710 (1984). There was no issue of juror unanimity or

lesser-included offense.

Retrial began on June 19, 1985. The focus of the

defense, from opening statement through cross-examina-

tion and concluding with closing argument, was that

someone other than petitioner had killed Mr. Grove. (See,

e.g., R.T. of June 19, 1985, at 283-84; R.T. of June 27, 1985,

at 1364-66, 1373-76, 1381.) Petitioner did not seek a spe-

cific-unanimity instruction, nor did he request separate

verdicts on murder with premeditation and murder com-

mitted during a felony. He did request that the trial court

give the jurors the option of finding him guilty of theft, a

crime that he argued constituted a lesser-included offense

of murder committed during a felony. (J.A. at 3-4.) The

trial court denied that request. (Id. at 5.)

The trial court instructed the jurors that first-degree

murder is murder which is the result of premeditation or

that occurs during an attempt to commit robbery. (J.A. at

26-27.) It also instructed that the jurors could find peti-

tioner guilty of the lesser-included offense of second-

degree murder. (/d.) The possible verdicts, to which peti-

tioner did not object, were guilty of first-degree murder,

guilty of second-degree murder, and not guilty. (/d. at 5.)

During closing arguments, both counsel addressed the

alternate methods by which first-degree murder could be

committed; either by premeditation or during the course

of a robbery. (I.D. at 6-7; R.T. of June 28; 1985, at 1358.)

The jurors returned a unanimous verdict of guilty of first-

degree murder. (Id. at 1411-13.)

The trial court conducted a hearing at which both

aggravating and mitigating evidence was presented. (R.T.

of Aug. 22, 1985.) On August 29, 1985, the trial court

entered its judgment of guilt and read the special verdict.

It found the existence of three statutory aggravating cir-

cumstances and no mitigating circumstances sufficient to

call for leniency, and imposed the death penalty as

required by law. (R.T. of Aug. 29, 1985, at 2-10.)

The automatic appeal raised 13 issues of alleged

error. (Opening Brief, Arizona Supreme Court.) Issue II

alleged that the trial court committed fundamental error

by failing to instruct the jurors and to give a form of

verdict on robbery as a lesser-included offense of murder

committed in the course of a felony. (Id. at 17-21.) The

Arizona Supreme Court held that there is no lesser-

included offense to the crime of first-degree murder com-

mitted in the course of a felony. Therefore, robbery was

not a lesser-included offense on which an instruction and

verdict could be based. (J.A. at 39-40.)

Petitioner argued in Issue XI that the trial court com-

mitted error by failing to submit separate verdict forms

for murder by premeditation and murder that occurred in

the course of a felony. (Opening Brief, Arizona Supreme

Court at 50.) The Arizona Supreme Court rejected that

contention citing the rule in Arizona that “first degree

murder is only one crime regardless whether it occurs as

a premeditated murder or a felony murder.” (J.A. at 41.)

It rejected all of petitioner’s contentions and affirmed the

conviction and sentence. (Id. at 55.) Petitioner then peti-

tioned this Court for certiorari.

+

SUMMARY OF ARGUMENTS

ISSUE I - JURY VERDICT

A. Petitioner’s failure to raise the specific-unanim-

ity issue in the trial court restricts the scope of this

Court’s review to that set forth by the “plain error” rule:

highly prejudicial error that affects the substantial rights

of petitioner. United States v. Payseno, 782 F.2d 832 (9th

Cir. 1986). Since the issue does not rise to a constitutional

level, and since the evidence of both methods of commis-

sion is overwhelming 2nu uncontested, petitioner has

failed to demonstrate “plain error.”

B. The unanimity-doctrine of the Sixth Amendment

does not extend to the states via the Fourteenth Amend-

ment because unanimity is not considered an essential

feature of that amendment. “A requirement of unanimity,

however, does not materially contribute to the exercise of

[the] common sense judgment [of the group of laymen

that lies between the accused and his accuser].” Apodaca

v. Oregon, 406 U.S. 404 (1972). Nor does the due process

doctrine of the Fourteenth Amendment require a unani-

mous verdict to satisfy the reasonable doubt standard

mandaied in capital cases. Johnson v. Louisiana, 406 U.S.

356, 363 (1972). Therefore, no federal constitutional foun-

dation exists for petitioner’s contention that a specific-

unanimity instruction was required in the present case.

C. Article Il, § 23 of the Arizona Constitution

requires juror unanimity in all criminal cases. The jurors

in this case were instructed that their verdict must be

unanimous. The federal unanimity doctrine was satisfied

in this case regardless of its application to the states.

D. The specific-unanimity doctrine is a rule of pro-

cedure applicable only to federal criminal trials. Rule

31(a), Fed. R. Crim. P.; United States v. Bedonie, 913 F.2d

782 (10th Cir. 1990). If it is a constitutional right founded

in the Sixth Amendment, United States v. Gipson, 553 F.2d

453 (5th Cir. 1977), it does not apply to the states because

it is a subcategory of the general-unanimity doctrine that

does not extend to the states. Apodaca v. Oregon, 406 U.S.

at 411-12.

E. The specific-unanimity doctrine discussed in

United States v. Gipson, 553 F.2d 453 (Sth Cir. 1977),

applies only to a single charge that contains two distinct

conceptual groups of acts sufficiently different to cause a

genuine possibility of juror confusion. United States v.

North, 910 F.2d 843 (D.C. Cir. 1990). If this federal doc-

trine is extended to the states in capital cases, the Arizona

interpretation of the first-degree murder statute is consis-

tent with the federal doctrine (first-degree murder is one

offense). State v. Encinas, 132 Ariz. 493, 647 P.2d 624

(1982). How a criminal commits the offense is constitu-

tionally irrelevant. State v. Vickers, 138 Ariz. 450, 675 P.2d

710 (1983), cert. denied, Vickers v. Arizona, 110 S. Ct. 3298

(1990).

F. If the lack of a specific-unanimity instruction is

considered error of constitutional magnitude, that error

was rendered harmless beyond a reasonable doubt in this

case by the overwhelming evidence of guilt with respect

to both methods of committing first-degree murder and

because that evidence was uncontested at trial. United

States v. Duncan, 850 F.2d 1104 (6th Cir. 1988), cert. denied,

Downing v. United States, 110 S. Ct. 732 (1990).

ISSUE II - LESSER-INCLUDED OFFENSES

A. Petitioner’s failure to raise the theft-as-a-lesser-

offense issue in the Arizona Supreme Court constitutes a

waiver of review of that issue by this Court.

8

B. Petitioner was charged with one count of murder

in the first degree, not robbery or theft. Neither robbery

nor theft are included within the statutory elements of

murder. Therefore, neither is a lesser-included offense of

murder and no instruction or verdict form was constitu-

tionally required. Schmuck v. United States, 489 U.S. 705

(1989).

+

ARGUMENTS

IA

PETITIONER DID NOT RAISE ANY JUROR-UNA-

NIMITY ISSUE AT EITHER OF HIS TWO TRIALS OR

AT ANY TIME PRIOR TO HIS SECOND STATE

APPEAL. HE IS THEREFORE NOT ENTITLED TO

REVIEW OF THIS ISSUE ABSENT A DEMONSTRA-

TION OF “PLAIN ERROR.”

Whether petitioner is even entitled to review of the

juror-unanimity issue depends upon the procedural doc-

trine of waiver. This doctrine, as it applies here, requires

the criminal defendant to raise the issue of unanimity in

the trial court or convince the reviewing court that the

issue involves “plain error.” United States v. Bedonie, 913

F.2d 782 (10th Cir. 1990). Piain error is highly prejudicial

error that affects the substantial rights of a defendant.

United States v. Payseno, 782 F.2d 832 (9th Cir. 1986).

Petitioner did not address the unanimity issue by

request, objection, or argument until his second state

appeal. (Opening Brief at 50.) His failure to give the trial

court an opportunity to resolve the question constitutes a

waiver of review by this Court unless he is able to show

that the absence of a specific-unanimity instruction and

verdict form was highly prejudicial and thus affected his

federal constitutional rights. United States v. Peterson, 768

F.2d 64 (2d Cir.), cert. denied, Peterson v. United States, 474

U.S. 923 (1985); State v. Boots, 308 Or. 371, 780 P.2d 725

(1989). The absence of an instruction, if error, was not

prejudicial to any degree and therefore could not have

affected petitioner’s constitutional rights.

The basic right to a unanimous verdict, founded in

the Sixth Amendment, is not made applicable to the

states by the due process clause of the Fourteenth

Amendment. Apodaca v. Oregon, 406 U.S. 404 (1972). Nor

does the Fourteenth Amendment’s right to proof beyond

a reasonable doubt entitle a state criminal defendant to a

unanimous jury verdict. Johnson v. Louisiana, 406 U.S. 356

(1972). This case law deprives petitioner’s contention of

any federal basis. Without a federal constitutional basis,

no substantial prejudice exists.

In addition, under the state court interpretation of

Arizona law, petitioner was convicted by a unanimous

jury. State v. Schad, 163 Ariz. 411, 417, 788 P.2d 1162, 1168

(1989), cert. granted, Schad v. Arizona, 111 S. Ct. 243 (1990).

He was entitled to a unanimous verdict with respect to

the crime charged —- first-degree murder - but not with

respect to the manner in which that offense was commit-

ted. State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627

(1982). This is because the mental state required for first

degree murder - wilful, deliberate, or premeditate - is

supplied either by evidence of premeditation or, w ren

the murder is committed during the course of a felony, by

the specific intent associated with that felony. State v.

Celaya, 135 Ariz. 248, 254, 660 P.2d 849, 855 (1983); State v.

Arias, 131 Ariz. 441, 443, 641 P.2d 1285, 1287 (1982). The

10

manner of commission is therefore irrelevant and not

subject to a separate instruction or verdict form. State v.

Woratzeck, 134 Ariz. 452, 455, 657 P.2d 865, 868 (1982),

Woratzeck v. Ricketts, 820 F.2d 1450 (9th Cir. 1988). Peti-

tioner was not prejudiced by the absence of the instruc-

tion or verdict form.

The lack of prejudice is also demonstrated by the

pertinent facts of this case. The only issue before the

jurors was who killed Mr. Grove. Uncontested evidence

established that Mr. Grove died as a result of strangula-

tion. (R.T. of June 20, 1985, at 361.) Petitioner did not

contest the evidence that established that the murder

occurred during the commission of a robbery. Manual

strangulation during a robbery is an act that can only be

committed with premeditation.

The state of the evidence supports unanimous con-

clusions that the murderer was guilty of first-degree mur-

der by premeditation and during a felony. There is no

prejudice because the outcome would have been identical

regardless of the instructions and verdict forms. See Pope

v. Illinois, 481 U.S. 497 (1988) (harmless error test for

invalid instruction is whether the result would have been

the same with or without the instruction).

Petitioner is unable to demonstrate the requisite pre)-

udice and consequent effect on his federal constitutional

rights. He cannot show plain error. He has no right to

have this issue reviewed by this Court.

11

IB

THE UNANIMITY DOCTRINE IS A FEDERAL RIGHT

NOT APPLICABLE TO THE STATES.

In Apodaca v. Oregon, 406 U.S. 404 (1972), this Court

ruled that the Sixth Amendment right to unanimity of

verdict did not extend through the Fourteenth Amend-

ment to the states. In Johnson v. Louisiana, 406 U.S. 356

(1972), it held that the reasonable doubt standard of proof

was not violated by a lack of juror unanimity on the issue

of guilt. Petitioner seeks to overturn these cases with

respect to capital cases. He contends that unanimity is

essential to the notions of reliability, accuracy, and com-

munity faith in jury verdicts. His contentions are founded

in both the Sixth (right to trial by jury) and Fourteenth

(proof beyond a reasonable doubt) Amendments.

This Court rejected each claim noted above. With

respect to the Sixth Amendment issue, the purpose of a

jury trial - prevention of oppression by the court or

prosecutor — was held to be protected by the “interposi-

tion between the accused and his accuser of the common

sense judgment of a group of laymen.” Apodaca v. Oregon,

406 U.S. at 410, quoting from Williams v. Florida, 399 U.S.

78, 100 (1970). Unanimity, said the court:

[D]oes not materially contribute to the exercise

of this common sense judgment . . . as long as it

consists of a group of laymen representative of a

cross section of the community who have the

duty and the opportunity to deliberate, free

from outside attempts at intimidation, on the

question of a defendant's guilt.

Id. at 410-11. This rationale is applicable to capital cases

as well as noncapital. The concern of the defendant

12

remains the same in both capital and noncapital cases:

protection from the overzealous prosecutor. The method

of protection is the same in both instances. The interests

of all parties are well served by either unanimity or

nonunanimity. Apodaca, 406 U.S. at 411.

Likewise inapplicable to juror unanimity contentions

is the Fourteenth Amendment's standard of proof

requirement — beyond a reasonable doubt — discussed in

In re Winship, 397 U.S. 358 (1970). “[T]he Sixth Amend-

ment has never been held to require proof beyond a

reasonable doubt in criminal cases.” Apodaca v. Oregon,

406 U.S. at 411. Nor is the lack of juror unanimity “to be

equated with the existence of a reasonable doubt.” John-

son v. Louisiana, 406 U.S. at 363. The lack of unanimity

does not deprive a criminal defendant of the right to

proof beyond a reasonable doubt. There is no denial of

due process of law. Id.

These opinions are directly on point and contrary to

petitioner’s contentions. There is no federal constitutional

basis for petitioner’s argument. A unanimous verdict is

not constitutionally required in capital cases.

IC

THE VERDICT IN THIS CASE SATISFIED THE UNA-

NIMITY DOCTRINE DESCRIBED IN JOHNSON V.

LOUISIANA AND APODACA V. OREGON.

In Duncan v. Louisiana, 391 U.S. 145 (1968), this Court

held that the Sixth Amendment right to trial by jury is

extended to the states by the Fourteenth Amendment. In

Williams v. Florida, 399 U.S. 78 (1970), this Court limited

the scope of Duncan by ruling that a 12-person jury was

13

not constitutionally required. Duncan was further

restricted by the holding in Apodaca v. Oregon, 406 U.S.

404 (1972), that the Sixth Amendment right to jury una-

nimity in federal criminal trials was not applicable to the

states. In Johnson v Louisiana, 406 U.S. 356 (1972), the

Court held that even the due process clause of the Four-

teenth Amendment does not contain a right to a unani-

mous jury verdict. This Court has thus given the states

the opportunitv to set their own standards with respect to

juror unanimity, so long as that standard is consistent

with the standards of a fair trial. See Burch v. Louisiana,

441 U.S. 130 (1979) (six-person jury for nonpetty offense

must be unanimous).

The Arizona Constitution mandates unanimous ver-

dicts in all criminal trials. Ariz. Const. art. Il, § 23. With

respect to the first degree murder statute, the Arizona

Supreme Court has consistently held that the above con-

stitutional provision is satisfied by a general jury verdict

of guilty of first-degree murder.

The defendant is entitled to a unanimous

jury verdict on whether murder has been com-

mitted.

State v Arnett, 158 Ariz. 15, 20, 760 P.2d 1064, 1069 (1988).

Regardless of the unanimity doctrine’s application to the

states, Arizona is in full compliance.

In this case, the trial court instructed the jurors that

their verdict must be unanimous. (J.A. No. 27.) The jurors

returned a unanimous verdict and a poll was taken to

assure that unanimity. (R.T. of June 27, 1985, at 1411-13.)

The unanimity doctrine associated with the Sixth Amend-

ment was Satisfied in this case.

14

ID

THE SPECIFIC-UNANIMITY DOCTRINE SOUGHT BY

PETITIONER IS A RULE OF PROCEDURE FOR FED-

ERAL TRIALS AND IS NOT APPLICABLE TO THE

STATES.

Petitioner contends that, in addition to the Sixth

Amendment's right to trial by jury and the associated

right to a unanimous jury verdict, there exists a constitu-

tional right in capital cases to have the jurors unani-

mously agree on the specific manner in which the

murderer killed his victim. If a specific-unanimity doc-

trine does exist, it is based on the federal rules of pro-

cedure and is therefore not applicable to the states.

Rule 31(a) of the Federal Rules of Criminal Procedure

requires only that “[t]he verdict shall be unanimous.” A

general instruction is normally sufficient to advise jurors of

their duty with respect to the issue of guilt. United States v.

Peterson, 768 F.2d 64 (2d Cir.), cert. denied, Peterson v. United

States, 474 U.S. 923 (1985). No court has attempted to extend

this federal rule of procedure to the states.

In 1977, the Fifth Circuit Court of Appeals inter-

preted the Sixth Amendment as mandating expansion of

this Court’s definition of unanimity to require that the

jurors in a federal criminal trial be in “substantial agree-

ment” with respect to the defendant’s “course of action”

where the charged acts fall into more than one “distinct

conceptual grouping.” United States v. Gipson, 553 F.2d

453, 457-58 (5th Cir. 1977). The decision, based on this

Court’s Johnson and Apodaca opinions, concluded:

Requiring the vote ot twelve jurors to con-

vict a defendant does little to insure that his

right to a unanimous verdict is protected unless

this prerequisite of jury consensus as to the

defendant’s course of action is also required.

15

553 F2d at 458 (footnote omitted). Even as the Fifth

Circuit applied Rule 31(a) to the Sixth Amendment, it

acknowledged that its ruling would not extend to the

states through the Fourteenth Amendment. Id. at 456.

If this Court’s rationale in Johnson and Apodaca is

valid, this component of the general unanimity doctrine

likewise does not apply to the states through the Four-

teenth Amendment. The unanimity clause of the Sixth

Amendment is not fundamental to the essentials of a jury

trial because the jury, a panel of one’s peers, is considered

sufficient protection against arbitrary law enforcement.

Johnson v. Louisiana, 406 U.S. at 373 (Powell, J., concur-

ring). This preexisting protection will not be enhanced by

application of a portion of a federal right that this Court

deems unnecessary to assure the constitutional reliability

of a state criminal trial. Therefore, there is no federal

constitutional basis for extending the specific-unanimity

doctrine to the states, not even in capital cases.

IE

IF THE SPECIFIC-UNANIMITY DOCTRINE IS APPLI-

CABLE TO THE STATES, THE ARIZONA -FIRS”-

DEGREE MURDER STATUTE IS IN FULL COMPLI-

ANCE.

In 1903, the first reported issue of specific-unanimity

arose in a New York criminal trial. The defendant was

charged with first-degree murder and the evidence sup-

ported both premeditation and commission during a fel-

ony. ihe court of appeals reviewed the elements of the

state statute to determine if the legislature intended to

prohibit a single offense that could be committed in alter-

native ways or to create distinct and separate offenses. It

concluded that first-degree murder, as described by the

16

New York statute, was but a single offense and proof that

the defendant killed either with premeditation or while

engaged in the commission of a felony established guilt.

It is unreasonable, said the court, to permit a defendant

to escape conviction because of a difference of opinion

among jurors about how the defendant murdered his

victim when all agree that the defendant did do it. People

v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903).

A multitude of state appellate courts have utilized

the Sullivan standard in deciding whether a trial court

should instruct the jurors on separate or single offenses in

both murder and nonmurder cases. See, e.g., People v.

Travis, 170 Ill. App. 3d 873, 525 N.E.2d 1137 (1988), cert.

denied, Travis v. Illinois, 489 U.S. 1024 (1989) (murder);

Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979),

cert. denied, Holland v. Wisconsin, 445 U.S. 931 (1980) (mur-

der); State v. Hazelett, 8 Or. App. 44, 492 P.2d 501 (1972)

(murder); State v. Duncan, 312 N.W.2d 519 (Iowa 1981)

(burglary); Wells v. Commonwealth, 561 S.W.2d 85 (Ky.

1978) (assault). The majority of those jurisdictions have

adopted the Sullivan rationale and conclude that first-

degree murder is one offense that may be committed in

various ways, not separately charged offenses. Annot.,

Jury Unanimity-Mode of Offense, 75 A.L.R.4th 91 (1990).

In this case, the indictment charged petitioner with

the murder of Lorimer Grove in violation of Arizona

Revised Statutes §§ 13-451, -452, and -453.1 (J.A. at 2.) The

applicable portion of the cited statutes reads:

' Arizona Revised Statutes §§ 13-451, -452, and -453 were

repealed on October 1, 1978. All subsequent references to these

statutes will be as they existed before the date of repeal.

17

A murder which is perpetrated by means of

poison or lying in wait, torture or by any other

kind of wilful, deliberate or premeditated kill-

ing, or which is committed . . . in the perpetra-

tion of, or attempt to perpetrate... robbery...

is murder of the first degree.

Arizona adopted this statute from California. Arizona

Penal Code, §§ 170-72 (1913). The California Supreme

Court interpreted its statute consistent with Sullivan,

holding that, when one crime is charged in the indict-

ment, the only issue before the jurors is whether the

defendant was guilty of that crime. It is not necessary for

the jurors to agree unanimously upon the theory of com-

mission. People v. Chavez, 37 Cal. 2d 656, 234 P.2d 632 (Cal.

1951); People v. Adcox, 47 Cal. 3d 207, 253 Cal. Rptr. 55, 763

P.2d 906 (1988), modified (1989), cert. denied, Adcox v. Cali-

fornia, 110 S. Ct. 1500 (1990).

Arizona has followed the lead of California and New

York. In State v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277

(1982), the state supreme court addressed a duplicitious-

charge argument and rejected the contention that the

statute defined two separate offenses - murder by pre-

meditation and murder during a felony. It held instead

that first-degree murder was a single offense capable of

commission in alternative ways.

Shortly thereafter, the court applied Axley to a mur-

der trial that raised the issue whether a single verdict™

denied the defendant a state constitutional right to a

unanimous jury verdict. The supreme court held:

In Arizona, first degree murder is only one

crime regardless whether it occurs as a premedi-

tated murder or a felony murder. Although a

18

defendant is entitled to a unanimous jury ver-

dict on whether the criminal act charged has

been committed, the defendant is not entitled to

a unanimous verdict of the precise manner in

which the act was committed.

State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982)

(citations omitted); see also State v. Lopez, 163 Ariz 108,

111, 786 P.2d 959, 962 (1990); State v. Smith (Edward), 160

Ariz. 507, 513, 774 P.2d 811, 817 (1989); State v. Arnett, 158

Ariz. 15, 19-20, 760 P.2d 1064, 1068-69 (1988); State v.

Berndt, 138 Ariz. 41, 45, 672 P.2d 1311, 1315 (1983); State v.

Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983); and

State v. Smith (Roger), 136 Ariz. 273, 277, 665 P.2d 995, 999

(1983).

Federal case law has developed similarly to state law.

In United States v. Gipson, 553 F.2d 453 (Sth Cir. 1977), the

Fifth Circuit reviewed a federal conviction under 18

U.S.C. § 2313. That statute prohibited the receipt, conceal-

ment, storage, barter, sale, or disposal of a stolen motor

vehicle. During deliberations, the jurors inquired if the

counts were separate or singular. The trial court

instructed that, if all jurors agreed that the defendant did

some of the acts but did not agree on which, they could

still find him guilty of selling or receiving a motor vehi-

cle. The defendant objected that the instruction violated

his right to a unanimous verdict. The circuit court ini-

tially recognized that the unanimity doctrine, founded in

Rule 31(a) of the Federal Rules of Criminal Procedure and

the Sixth Amendment, was a federal rule not applicable

to state proceedings. Id. at 456. It then considered the

applicability of the unanimity doctrine to a charge that

prohibits several acts and yet permits the jurors to return

a general guilty verdict even though they are not in

19

agreement about which act the defendant committed. The

court focused on the actus reus as charged in the indict-

ment and asked whether those acts were so conceptually

distinct that a general verdict would not permit unanim-

ity. The standard the circuit court applied is:

[Whether] the acts are sufficiently analo-

gous to permit a jury finding of the actus reus

element of the offense to be deemed “unani-

mous” despite differences among the jurors as

to which of the intragroup acts the defendant

committed.

Id. at 458. Or conversely:

[Whether] the two conceptual groupings are

sufficiently different so that a jury finding of the

actus reus element of the offense would not be

“unanimous” if some of the jurors thought the

defendant committed only an act in the first

conceptual grouping while others believed he

committed an act only in the second.

Id. Under the federal statute at issue, the court held that

there were two distinct conceptual groupings within the

six listed acts; receiving, concealing, and storing, and

bartering, selling, and disposing. The court concluded

that the trial court’s instruction misled the jurors and

permitted a less-than-unanimous verdict in violation of

the Sixth Amendment. Id. Within each group, however,

the acts were deemed sufficiently analogous to permit a

unanimous verdict notwithstanding potential juror dis-

sension about which of those acts the defendant commit-

ted. The question presented by the Gipson court is

whether the charged offense contains conceptually dis-

tinct or analogous acts or groupings.

20

The federal and state standards are conceptually

identical. Each recognizes that unanimity is required in

obtaining a conviction. Each focuses upon the elements of

the statute as described in the charge to evaluate the

legislative intent in describing single or multiple offenses.

Each concludes that a statute may describe a single

offense that may be committed in alternate ways and

therefore, unanimity is not procedurally, statutorily, or

constitutionally required to distinguish between the lis-

ted methods of commission. The only issue remaining is

whether Arizona’s first-degree murder statute describes a

single offense or conceptually distinct offenses.

State and federal appellate courts that have consid-

ered this issue have established a number of factors that

reflect whether the legislature intended to fashion singu-

lar or multiple offenses, including; statute title, language,

and legislative history, State v. Tillman, 750 P.2d 546 (Utah

1987), Ward v. State, 758 P.2d 87 (Alaska 1988), whether

the acts are connected, consistent, or repugnant (proof of

one disproves the other), State v. Duncan, 312 N.W.2d 519

(lowa 1981), State v. Hazelett, 8 Or. App. 44, 492 P.2d 501

(1972), whether the defendant can be convicted of multi-

ple offenses under one statute, State v. Arnett, 158 Ariz.

15, 18-19, 760 P.2d 1064, 1067-68 (1988), Rice v. State, 311

Md. 116, 532 A.2d 1357 (1987); or punished twice for

conviction under that statute, State v. Edwards, 163 Conn.

527, 316 A.2d 387 (1972); and whether conviction under

either of the alternate acts would result in the same legal

consequences, Wells v. Commonwealth, 561 S.W.2d 85 (Ky.

1978).

21

Application of the above factors to the Arizona stat-

ute supports the Arizona Supreme Court’s pronounce-

ment that first-degree murder defines a single offense

that may be committed in alternate ways rather than

separate, distinguishable offenses of premeditated and

felony murder.

1. Statutory title and language

Arizona Revised Statutes § 13-452 is entitled Degrees

of Murder. The title reflects an intent to divide the crime

of murder into degrees but not into separate offenses

within those degrees. The statutory language supports

this conclusion. The legislature defined murder in Ari-

zona Revised Statutes § 13-451 as a malicious killing. In a

separate statute, it established two degrees of murder

distinguished only by the defendant’s state of mind. Ari-

zona Revised Statutes § 13-452. The gravamen of the

offense is the act of killing, not premeditating or robbing.

Whether an accused kills with premeditation or kills dur-

ing a robbery is irrelevant to prove the act of murder; the

defendant’s conduct is relevant only to establish the

degree of the offense and therefore, the punishment.

Those acts constitute the factual basis of the crime, not

the offense itself. The method of accomplishing the kill-

ing is therefore immaterial to unanimity of the verdict.

Cardin v. State, 73 Md. App. 200, 533 A.2d 928 (Md. App.

1987), cert. denied, Cardin v. Maryland, 488 U.S. 827 (1988)

(deprivation of ownership is the focus of the theft statute,

not how the theft was committed). The statutory title and

language support the sti court’s conclusion that first

degree murder is but one offense.

22

2. Legislative history

As noted above, Arizona adopted its statute from

California. Both the California and Arizona appellate

courts have concluded that the respective legislatures

intended to define single rather than separate offenses.

People v. Chavez, 37 Cal. 2d 656, 234 P.2d 632 (1951); State

v. Axley, 132 Ariz. 383, 392, 646 P.2d 268, 277 (1982). This

factor weighs in favor of a singular offense.

3. Connected and Consistent, or Repugnant Acts

This factor also weighs in favor of a finding of a

singular offense. The Arizona Supreme Court has held

that first-degree murder is one offense, primarily because

the crime focuses on the act of killing, but also because of

the connection between the alternative acts. State v. Arias,

131 Ariz. 441, 443, 641 P.2d 1285, 1287 (1982) (the premed-

itation element required to prove first degree murder is

supplied by the intent required for the underlying fel-

ony). By proving that a killing occurred during a robbery,

the state also proves premeditation. Id. This connection

between the alternative acts provides for consistency, not

repugnance. This factor weighs in favor of a singular act.

4. Multiple conviction or punishment

The Arizona Supreme Court has consistently held

that first-degree murder is one offense. State v. Smith

(Roger), 136 Ariz. 273, 277, 665 P.2d 995, 999 (1983).

Implicit in that determination is the conclusion that a

23

defendant cannot be convicted or punished for both mur-

der by premeditation and murder by felony. This factor

weighs in favor of finding a singular offense.

5. Legal consequence of conviction

Arizona Revised Statutes § 13-453(A) sets forth the

punishment possible upon conviction of first-degree mur-

der; death or imprisonment for life. There is no statutory

distinction between murder by premeditation and mur-

der by felony. Because first-degree murder is only one

offense, State v. Berndt, 138 Ariz. 41, 45, 672 P.2d 1311,

1315 (1983), the legal consequence for commission of that

crime is not dependent upon the method of conviction.

This factor thus weighs in favor of finding a single

offense.

The above factors exist for one purpose; to prevent

juror confusion about which offense is at issue. United

States v. Bedonie, 913 F.2d (10th Cir. 1990); United States v.

Schiff, 801 F.2d 108 (2d Cir. 1986), cert. denied, Schiff v.

United States, 480 U.S. 945 (1987); United States v. Gipson,

553 F.2d 453 (Sth Cir. 1977). The Arizona murder statute

does not create confusion. Arizona Revised Statutes

§ 13-451 defines murder as a killing with malice

aforethought. Arizona Revised Statutes § 13-452 divides

murder into two degrees, not separate categories. Under

this latter statute, jurors can find that the murder was

committed with premeditation or during a felony or both.

If some find murder by premeditation and some find

murder by felony, there is no confusion because both

methods result in the same conclusion; the defendant has

committed first-degree murder. State v. Arias, 131 Ariz.

24

441, 443, 641 P.2d 1285, 1287 (1982) (the specific intent

required for the felony substitutes for premeditation).

Because the commission of a felony establishes premed-

itation, the verdict is unanimous regardless of how the

jurors voted.

The Arizona statute satisfies all of the factors that

indicate that a statute defines a single offense. It does not

present a genuine possibility that the jurors will be con-

fused about what conduct constitutes the offense of first

degree murder. Even if the federal specific-unanimity

doctrine does apply to state capital trials, it does not

apply here.

IF

EVIDENCE THAT THIS MURDER WAS COMMITTED

BOTH WITH PREMEDITATION AND DURING THE

COURSE OF A FELONY IS OVERWHELMING. IT WAS

ALSO UNCONTESTED AT TRIAL. THESE FACTS

RENDER HARMLESS ANY ERROR THAT MIGHT BE

ASSOCIATED WITH THE LACK OF A SPECIFIC-UNA-

NIMITY INSTRUCTION AND VERDICT FORM.

The evidence in this case established that someone

strangled Lorimer Grove and took his automobile, travel

trailer, checkbook, wallet, cash, and credit cards. Peti-

tioner did not contest the sufficiency of that evidence at

trial or on direct appeal. The only question raised by

petitioner was who committed that murder. By direct and

cross-examination and argument to the jurors, counsel

attempted to counter the state’s evidence that connected

petitioner to the murder by alluding to the possibility

that someone else killed Mr. Grove: perhaps the Tison

gang (see Tison v. Arizona, 481 U.S. 137 (1987), or some

25

unknown person that Mr. Grove might have treated to

lunch in Sedona, Arizona, over a month before the mur-

der. The defense urged the jurors to find that petitioner

merely possessed Mr. Grove’s belongings without having

murdered him to acquire them. (R.T. of June 27, 1985, at

1381.)

Where there is but one crime charged - first degree

murder — and the only issue is who committed it, the

manner of commission becomes irrelevant. State v. Till-

man, 750 P.2d 546 (Utah 1987). The harmless error doc-

trine set forth in Chapman v. California, 386 U.S. 18 (1967),

is applicable when it is clear beyond a reasonable doubt

that if error existed, it had no effect on the verdict. The

manner in which Mr. Grove was murdered was never

questioned at trial and therefore could not have affected

the verdict. If the jurors found that petitioner was the

perpetrator, his guilt was established without regard to

the manner of its commission. If it was error to not

instruct the jurors as petitioner now requests, the error

was harmless beyond a reasonable doubt.

Petitioner’s failure to request the instruction and ver-

dict form is additional support for application of the

harmless error doctrine. United States v. Duncan, 850 F.2d

1104 (6th Cir. 1988), cert. denied, Downing v. United States,

110 S. Ct. 732 (1990); Scarborough v. United States, 522 A.2d

869 (D.C. App. 1987). Petitioner sought only to challenge

the state’s evidence of identity and not the crime or the

manner of its commission. Any contention that the mur-

der was not premeditated or did not occur during a

felony would be inconsistent with and serve to dilute his .

26

primary defense. The failure to request a specific-una-

nimity instruction supports a finding of harmless error.

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

Finally, the state court’s interpretation of the first-

degree murder statute renders any error harmless beyond

a reasonable doubt. In Arizona, first-degree murder is a

single offense regardless of the method of commission.

State v. Sanchez, __ Ariz. __, 797 P.2d 703 (Ct. App.

1990). If the offense is committed during one of the listed

felonies, the specific intent required for that felony fulfills

the mental element required for first degree murder; i.e.,

proof of a killing during the commission of robbery is the

equivalent of proof of a killing with premeditation. State

v. Celaya, 135 Ariz. 248, 254, 660 P.2d 849, 855 (1983); see

also State v. Wilson, 220 Kan. 341, 552 P.2d 931, overruled,

597 P.2d 1108 (1976) (proof of a killing during the per-

petration of a felony is tantamount to proof of a killing

with premeditation).

The harmless error doctrine applies because any of

the jurors who found that the murder occurred during a

felony necessarily found premeditation. State v. Arias, 131

Ariz. 441, 443, 641 P.2d 1285, 1287 (1982); see also United

States v. Bedonie, 913 F.2d 782 (10th Cir. 1990) (even if the

evidence permitted the jurors to be split on the theory

underlying the first degree murder conviction, the ele-

ments of arson-murder would necessarily have been

unanimously established). Either or both methods satisfy

the Arizona statute and the outcome could not have been

affected. The facts and the law render any error harmless

in this case.

27

IIA

PETITIONER’S FAILURE TO SEEK DIRECT APPEL-

LATE REVIEW OF THE THEFT-AS-A-LESSER-

INCLUDED-OFFENSE-OF-ROBBERY ISSUE CONSTI-

TUTES A WAIVER OF THAT ISSUE IN THIS COURT.

Petitioner contends that he was entitled to an instruc-

tion and verdict form on robbery as a lesser-included

offense of first-degree murder committed in the course of

a felony (with robbery as the lesser-included offense) and

an additional instruction and verdict form on theft as a

lesser-included offense of robbery. He is not entitled to

review of the latter because he never sought or received a

final judgment on this issue in the Arizona Supreme

Court.

This Court’s jurisdiction to review state court deci-

sions is limited by 28 U.S.C. § 1257 to final judgments and

decrees rendered by the state’s highest court. Costarelli v.

Massachusetts, 421 U.S. 193 (1975). Where the state court

has not rendered a judgment on the issue presented on

certiorari, this Court lacks the jurisdiction to consider

that issue. See Burns v. Ohio, 360 U.S. 252 (1959).

Petitioner requested a theft instruction at trial but he

did not request a verdict form. (Jd. at 3-5.) On direct

appeal, petitioner did not challenge the trial court’s

refusal to instruct the jurors on theft as a lesser-included

offense or the lack of a verdict form to that effect. (Appel-

lant’s Opening Brief, Arizona Supreme Court, at 17.) The

Arizona Supreme Court did not address any theft issue in

its opinion. (J.A. at 30-55.) The only lesser-included issue

on appeal concerned robbery. (Id. at 39-40.) Consequently,

28

this Court lacks the jurisdiction necessary to review the

theft-as-a-lesser-included-offense issue.

UNDER THE STATUTORY-ELEMENTS TEST AS

APPLIED TO ARIZONA REVISED STATUTES

§§ 13-451 AND 452, ROBBERY IS NOT A LESSER-

INCLUDED OFFENSE OF FIRST-DEGREE MURDER.

Petitioner contends that Beck v. Alabama, 477 U.S. 625

(1980), requires an instruction and verdict form for rob-

bery as a lesser-included offense of first-degree murder

when the evidence supports a finding that the murder

was committed in the course of a robbery. He urges this

Court to adopt a due process requirement in capital cases

that permits jurors to return a verdict on any offense less

than first-degree murder that is supported by the evi-

dence produced at trial. The law is contrary to his posi-

tion.

In Beck, this Court held that failure to give the jurors

a third option of convicting of a lesser-included offense in

capital cases violated due process. That case involved an

Alabama statute that prohibited giving a lesser-included

offense instruction in a capital case. The state conceded

that Beck would have been entitled to the lesser-included

instruction as a matter of law had the statute not prohib-

ited doing so. Beck is necessarily restricted to situations

that inwolve lesser-included offenses. Neither robbery nor

theft are lesser-included offenses under either federal or

Arizona law. Therefore, Beck is inapplicable to this case.

This Court recently adopted a new standard for

determining whether one offense is included within the

29

offense charged in the indictment. Schmuck v. United

States, 489 U.S. 705 (1989). Rejecting the previously

employed “inherent relationship” test, the Court held

that a necessarily-included offense would require com-

parison of the statutory-elements of both offenses to

determine whether the elements of the lesser offense are

necessarily included within the elements of the charged

offense. Is it possible, asked the Court, to commit the

greater offense without necessarily committing the

lesser? Does proof of the greater offense invariably

require proof of the lesser? Does the lesser statute contain

all of the elements of the greater, minus one? If the lesser

statute contains an element that is not contained in the

greater statute, it is not a “lesser-included” offense. Id.

Arizona determines the existence of a lesser-included

offense by the same statutory-elements standard imposed

on the federal courts by Schmuck. State v. Mounce, 150

Ariz. 3, 5, 721 P.2d 661, 663 (Ct. App. 1986); State v.

Poehnelt, 150 Ariz. 136, 148, 722 P.2d 304, 316 (Ct. App.

1985). The same rationale has been applied to this state’s

lesser-offense analysis as was applied in Schmuck. Rule

23.3, Ariz. R. Crim. P.; State v. Kinkade, 147 Ariz. 250, 253,

709 P.2d 884, 887 (1985) (possible to commit the greater

without necessarily committing the lesser); State v. Tims,

143 Ariz. 196, 198-99, 693 P.2d 333, 335-36 (1985) (lesser

contains all the elements of the greater minus one); State

v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983)

(evidence must support the lesser). This issue must be

resolved by comparison of the pertinent statutory ele-

ments, not the inherent relationship of the offenses as

presented by the evidence at trial.

30

The first-degree murder statute reads, in pertinent

part, as follows:

Murder is the unlawful killing of a human

being with malice aforethought. .. .

A murder which is perpetrated by means of

poison or lying in wait, torture or by any other

kind of wilful, deliberate or premeditated kill-

ing, or which is committed in avoiding or pre-

venting 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 may-

hem, or sexual molestation of a child under the

age of thirteen years, is murder of the first

degree.

Arizona Revised Statutes §§ 13-451, -452. Robbery is

defined as:

[T]he felonious taking of personal property

in the possession of another from his person, or

immediate presence, and against his will,

accomplished by means of force or fear.

Comparison of the elements of these two statutes

results in the conclusion that robbery, as a matter of law,

is not a lesser-included offense of first-degree murder

because the elements of robbery (taking of personal prop-

erty by force or fear) differ from the elements of murder

(wilful, deliberate, or premeditated killing with malice).

Proof of murder does not invariably require proof of

robbery. Murder can be committed by poison, lying in

wait, torture, avoiding or preventing escape, arson, rape,

burglary, kidnapping, mayhem, or sexual molestation, all

of which are independent of the statutory elements of

robbery. Robbery does not contain all of the statutory

31

elements of first-degree murder minus one. In fact, rob-

bery contains none of the elements of murder. The statu-

tory-elements test conclusively eliminates robbery as a

lesser-included offense of first-degree murder.

Petitioner’s contention is loosely based on the “inher-

ent relationship” standard (the evidence supports a con-

viction of any lesser offense). The Schmuck opinion

rejected that analysis for determining lesser offenses and

substituted the statutory-elements standard set forth

above. Beck remains applicable only where the statutory

elements of the lesser offense are a subset of the statutory

elements of capital murder. Whether the evidence in this

case was sufficient to sustain a conviction of robbery as

well as first-degree murder is irrelevant because robbery

is statutorily distinguishable from murder. Under

Schmuck, petitioner was not entitled to either instruction

or verdict form for the offense of robbery.

In addition, Beck was satisfied in this case by the

instruction and verdict form given for second degree

murder. (J.A. at 27-28.) The jurors were indeed permitted

to consider a verdict of guilt of a lesser-included noncapi-

tal offense, the “third option” requirement instituted by

Beck. They rejected that third option in favor of the first;

guilty of first-degree murder. Due process was satisfied.

Petitioner attacks the Arizona rule that no lesser-

included offense exists for the crime of “felony murder.”

He is dissatisfied with the court’s explanation that the

underlying felony supplies the mens rea necessary to sat-

isfy the premeditation element of first-degree murder.

(Brief For Petitioner at 24.) His argument ignores the rule

32

of law that coexists with the above-stated rule: In Ari-

zona, first-degree murder is a single offense that may be

committed in more than one way. State v. Encinas, 132

Ariz. 493, 496, 647 P.2d 624, 627 (1982).

The result of these holdings is that, in Arizona, there

is no separate offense of felony murder. A person com-

mits first-degree murder by killing another with malice

aforethought and does so wilfully, deliberately, or with

premeditation, or while committing or attempting to

commit a listed felony, which felony substitutes the mens

rea necessary to satisfy the premeditation element. State v.

LeGrand (Walter), 153 Ariz. 21, 30, 734 P.2d 563, 572, cert.

denied, LeGrand v. Arizona, 484 U.S. 872 (1987). When the

Arizona Supreme Court states that there is no lesser-

included offense for felony murder, it necessarily incor-

porates these previous decisions and concludes that proof

of the commission of a felony is not invariably necessary

to prove first-degree murder. Because robbery is not nec-

essarily required to prove murder, it cannot constitute a

lesser-included offense. State v. Mounce, 150 Ariz. 3, 5, 721

P.2d 661, 663 (Ct. App. 1986). Due process does not

require instructing on a lesser-included offense where

there is no lesser-included offense. Beck v. Alabama, 447

U.S. at 636.

Petitioner’s contention with respect to theft as a

lesser-included offense is wholly without merit. He

argues that robbery is a lesser-offense of murder by fel-

ony and theft is a lesser offense of robbery. (Brief for

Petitioner at 22-23.) In addition, he submits that the evi-

dence supports a reasonable inference that he acquired

Mr. Grove’s property without force, fear, or murder. (/d.)

Consequently, he proposes that Beck required that the

33

jurors be permitted to find him guilty of theft as a lesser-

included offense of robbery, which was a lesser-included

offense of first-degree murder by felony. This convoluted

rationale is without legal or factual basis.

Respondent has discussed above why robbery, as a

matter of law, is not a lesser-included offense of first-

degree murder-felony. In addition, petitioner’s attempt to

extend Beck is not justified by the rationale on which that

case is founded. The Court in Beck began its analysis by

recognizing the rule that the jurors could return a verdict

on any offense “necessarily included in the offense

charged.” 447 U.S. at 633. The flaw in petitioner’s argu-

ment is that theft is not a lesser-included offense of first-

degree murder; it is a lesser-included offense of robbery.

The jurors could not return a guilty verdict for an offense

that is neither charged nor necessarily-included within

the charged offense. Beck does not require the trial court

to instruct on any offense that may be proved by the

evidence, only those that are included within the charged

offense. Petitioner was not entitled to have the jurors

instructed on theft as a lesser offense of first degree

murder.

Finally, petitioner was not entitled to a lesser-

included offense instruction and verdict form for theft

because there was no evidence to support either. An

instruction on a lesser-included offense can be given only

“if the evidence would permit a jury rationally to find

him guilty of the lesser offense and acquit him of the

greater.” Keeble v. United States, 412 U.S 205 (1973). Due

process prohibits instructing on a lesser-included offense

where there is no supporting evidence. Roberts v. Louisi-

ana, 428 U.S. 325 (1976).

34

Further, under Arizona law, for a defendant to be

entitled to a lesser-included offense instruction, there

must be some affirmative evidence tc support the lesser

offense; the mere possibility that the jurors might choose

to disbelieve a portion of the state’s case does not entitle

the defendant to a lesser-included offense instruction.

State v. Leon, 104 Ariz. 297, 300, 451 P.2d 878, 881 (1969);

State v. King, 67. Ariz. Adv. Rep. 56 (Ct. App., Aug. 23,

1990). In the present case, petitioner presented absolutely

no evidence how he acquired Mr. Grove’s car or credit

cards or checkbook. He did not testify. He did not present

any witnesses to testify that the items were stolen rather

than taken during a robbery. His cross-examination of

state witnesses did not produce any evidence to show

how he came to possess Mr. Grove’s property. The

defense focused exclusively on identity of the killer, not

on petitioner’s acquisition of the property. The theft the-

ory was produced from counsel’s argument, not testi-

mony. (J.A. at 23.) Argument is not evidence.

This lack of evidence destroys any support that peti-

tioner might otherwise have had for a lesser-included

offense instruction. There was no due process violation

under Beck because petitioner was not entitled to a lesser-

included instruction.

>

CONCLUSION

In order for petitioner to prevail, this Court has to

overrule both Johnson and Apodaca and extend the Sixth

Amendment unanimity doctrine to state capital cases.

That would not provide petitioner any greater protection

35

than he now receives under the existing interpretations of

both federal and state constitutions. There is no purpose

to be served by disturbing settled law. If, however, the

federal constitutional provision is extended to Arizona

Revised Statutes §§ 13-451 and -452, petitioner was not

entitled to a specific verdict because murder in Arizona

consists of a single offense that results in unanimity of

verdict regardless of the mode of commission, not con-

ceptually distinct acts that require separate verdicts to

insure unanimity.

Robbery is not a lesser-included offense of the crime

of first-degree murder even if the murder is committed

during a robbery. The due process clause of the Four-

teenth Amendment was satisfied by giving the jurors the

opportunity to find petitioner guilty of second-degree

murder, a noncapital offense.

For the above-stated reasons, respondent urges this

Court to reject petitioner’s contentions and uphold the

opinion of the Arizona Supreme Court.

Respectfully submitted,

Rosert K. Corsin

Attorney General

RONALD L. CrISMON

Acting Chief Counsel

Criminal Division

R. Wayne Forp

(Counsel of Record)

Assistant Attorney General

Attorneys for Respondent