Opposition Brief — Richmond v. Lewis

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merresy “FILED.

a yr Oech

9 FEB 18 1989

— + OFFICE OF THE CLERK

W NO. 91-7094

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1991

WILLIE LEE RICHMOND,

Petitioner,

-vs-

SAMUEL A. LEWIS, et al.,

Respondents.

ON WRIT OF CERTTORARI TO THE

NINTH CIRCUIT COURT OF APPEALS

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

GRANT WOODS

Attorney General of

the State of Arizona

PAUL J. MCMURDIE

Chief Counsel

Criminal Appeals Section

JACK ROBERTS

Assistant Attorney General

Counsel of Record

Departinent of Law

1275 W. Washington

Phoenix, Arizona 85007

Telephone: (602) 542-4686

Attorneys for RESPONDENTS

QUESTIONS PRESENTED

l. Do the eighth and fourteenth amendments prohibit

imposition of the death penalty when both the trial court and

the Arizona Supreme Court have found that petitioner intended

to cause, and did cause, the death of the victim, and the

evidence at trial, including circumstantial evidence, supports

those findings?

2. When the law of the state provides that if the

prosecution proves one aggravating circumstance, the death

penalty shall be imposed unless the defendant produces

substantial mitigation, and the state proves beyond a

reasonable doubt three aggravating circumstances, two of which

petitioner has never challenged, does a federal habeas corpus

court violate the constitution by determining: (a) under this

Court's decision in Lewis v. Jeffers, a rational fact-finder

could have found that petitioner committed the offenses in an

especially heinous manner; (b) even if the especially heinous

factor were eliminated, the remaining two, unchallenged

aggravating circumstances would still justity the death

penalty?

QUESTIONS PRESENTED

TABLE OF CASES AND AUTHORITIES

OPINIONS BELOW

JURISDICTION

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

I

THTS COURT SHOULD DENY CERTIORARI BRECAUSE BOTH

THE TRIAL COURT AND THE ARIZONA SUPREME COURT

DID DETERMINE THAT RICHMOND DROVE THE CAR OVER

BERNARD CRUMMETT AND A RATIONAL FACT-FINDER,

UNDER THE CIRCUMSTANCES OF THIS CASE, COULD HAVE

FOUND THE ESPECIALLY HEINOUS FACTOR APPLICABLE.

II

EVEN IF THE ESPECIALLY HEINOUS FACTOR WERE

ELIMINATED, NOTHING IN CLEMONS V. MISSISSIPPI OR

THE PRACTICE OF THE ARIZONA SUPREME COURT IN ITS

REVIEW OF CAPITAL CASES WOULD REQUIRE A REMAND FOR

RESENTENCING BECAUSE THE TWO REMAINING, UNCHALLENGED

AGGRAVATING CIRCUMSTANCES, AND RICHMOND'S FAILURE TO

ESTABLISH SUFFICIENT MITIGATION, JUSTIFY THE DEATH

PENALTY.

CONCLUSION

CERTIFICATION

APPENDIX A

APPENDIX B

APPENDIX C

oiittien

15

TABLE OF CASES AND AUTHORITIES !

Case

Adamson v. Ricketts

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

Barclay v. Florida

463 U.S. 939

103 S. Ct. 3418

77 L. Ed. 2d 1134 (1983)

Cabana v. Bullock

474 U.S. 376

106 S. Ct. 689

88 L. Ed. 2d 704 (1986)

Clemons v. Mississippi

44 U.S.

110 S. Ct. 1441

108 L. Ed. 2d 725 (1990)

Enmund v. Florida

458 U.S. 782

102 S. Ct. 3368

73 L. Ed. 2d 1140 (1982)

Lewis v. Jeffers

497 U.S.

S. Ct. 3092

———

111 L. Ed. 2d 606 (1990)

Richmond v. Cardwell

450 F. Supp. 519 (D.

Richmond v. Ricketts

640 F. Supp. 767 (D.

State v. Blazak

131 Ariz. 598

643 P.2d 694 (1982)

State v. Brewer

CR-88-0308-AP (Ariz.

State v. Clark

126 Ariz. 428

616 P.2d 888 (1980)

Ariz. 1978)

Ariz. 1986)

Sup. |

-iii-

Jan.

28,

Page

26

28,33

22

25,28,29,30

12,19

13,14,18,24,35

13,17

27

1992) 26

27

fj

State v. Corre.i

148 Ariz. 468

715 P.2d 721 (1986)

State v. Gilles

135 Ariz. 500

662 P.2d 1007 (1983)

State v. Jeffers

135 Ariz. 404

661 P.2d 1105 (1983)

State v. McCall

139 Ariz. 147

677 P.2d 920 (1983)

State v. Ortiz

131 Ariz. 195

639 P.2d 1020 (1981)

State v. Richmond

114 Ariz 186

560 P.2d 41 (1976)

State v. Richmond

136 Ariz. 312

666 P.2d 57 (1983)

State v. Schaaf

Ariz.

819 P.2d 909 (1991)

State v. Watson

120 Ariz. 441

586 P.2d 1253 (1978)

Tison v. Arizona

481 U.S. 137

107 S. Ct. 1676

95 L. Ed. 20d 127 (1987)

Walton v. Arizona

497 U.S. ___.

110 S. Ct. 3047

111 L. Ed. 2d 511 (1990)

Zant v. Stephens

462 U.S. 862

103 S. Ct. 2733

77 L. Ed. 2d 235 (1983)

-iv-

26

1}

26

26

27

9,10,27

11,18

11

13,18,28,30,35

28,29,31,33

e¢

horiti

28 U.S.C. § 1254(1)

Arizona Revised Statues

13-454(E)

13-454(F)

13-703(C)

13-703(E)

13-703(F)

13-703(F) (2)

13-703(F) (6)

13-703(G)

13-703(G) (4)

AMAMADADGUOIDI?

United States Constitution

Eighth Amendment

Fourteenth Amendment

bo NM

OPINIONS BELOW

The Ninth Circuit Court of Appeals issued its opinion on

December 26, 1990. Petitioner timely moved for rehearing and

suggested rehearing en banc. On October 17, 1991, the panel

who studied the record in this case and twice heard oral

argument unanimously rejected the motion for rehearing and

the suggestion for rehearing en banc. Four judges dissented

from denial of the suggestion for rehearing en banc.

(Appendix B to the Petition for Writ of Certiorari.)

Richmond's counsel filed a renewed petition for rehearing and

suggestion for rehearing en banc. Respondents moved to

strike that renewed motion and the Ninth Circuit granted

respondents’ motion. On December 18, 1991, the Ninth Circuit

filed an amended opinion and on January 14, 1992, the Ninth

Circuit filed a further amended opinion. (Appendix A to this

response. )

JURISDICTION

On December 26, 1990, the Ninth Circuit Court of Appeals

issued its original opinion. Defense counsel filed a timely

petition for rehearing, which was denied on October 17,

1991. Since the petition for a writ of certiorari was filed

within 90 days of October 17, 1991, it is timely under this

Court's rules.

Richmond invokes this Court's discretionary jurisdiction

pursuant to 28 U.S.C. § 1254(1).

’

STATUTORY AND CONSTITUTIONAL PROVISIONS IN. JLVED

This case involves the Eighth Amendment to the

Constitution of the United States, which provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

This case also involves the Fourteenth Amendment, which

provides in part:

(NJor shall any State deprive any person of life,

liberty, or property without due process of law;

nor deny to any person within its jurisdiction

the equal protection of the laws.

In addition, this case involves the following provisions of

Arizona law:

In determining whether to impose a sentence of

death or life imprisonment without possibility of

release on any basis until the defendant has

served twenty-five calendar years if the victim

was fifteen or more years of age or thirty-five

calendar years if the victim was under {fifteen

years of age, the court shall take into account

the aggravating and mitigating circumstances

included in subsections F and G of this section

and shall impose a sentence of death if the court

finds one or more of the aggravating

circumstances enumerated in subsection F of this

section and that there are no mitigating

circumstances sufficiently substantial to call

for leniency.

A.R.S. § 13-703(E).

The defendant committed the offense in an

especially heinous, cruel or depraved manner.

A.R.S. § 13-703(F)(6).

STATEMENT OF THE CASE

THE TRIAL

Saturday night, August 25, 1973 -- the last night of

his life -- Vietnam veteran Bernard Crummett met Rebecca

Corella, Faith Erwin, and Richmond at the Birdcage Bar in

Tucson. Richmond, then 25, refused to let Faith, his

15-year-old girlfriend, prostitute herself with Crummett;

Becky, a former girlfriend of Richmond's, ayreed to do so.

The foursome drove to Becky's apartment at the Sands

Motel. (R.T. at 430-84, 539-49.)

When Becky gave Richmond the $20 bill Crummett gave

her, Richmond, who apparently had worked this scam before,

palmed the bill and protested that Crummett had given her

only $10. As Crummett opened his wallet to produce another

$20, Becky saw that it was “loaded” and told Richmond. He

told Becky they could not rob Crummett there because he

could remember the location of the apartment. After Becky

and Crummett retired to the bedroom, Richmond told Faith

they were going to rob Crummett, but to say nothing. (Id.

at 437, 540-41.)

When Becky and Crummett emerged from the bedroom,

Richmond, under the guise of providing Crummett another

opportunity to have relations with Becky, drove the quartet

almost to the end of 22nd Street and turned the station

wagon around. It was after midnight. (Id. at 437-39, 541.)

Richmond got out and snatched Crummett out tie passenger

door on the driver's side. Pichmond knocked him down; when

he tried to get up, Richmond knocked him down again.

Richmond looked around for large rocks and, standing directly

above Crummett, threw those down upon Crummett's head. (1d.

at 439-42, 542.)

When Becky and Richmond finished rifling Crummett's

pockets, they got back into the car. The testimony of the

only eyewitness to the murder, Faith Erwin, was that Richmond

drove the car over Crummett. (Jd. at 434.) That first pass

literally exploded Crummett's skull. Approximately

30 seconds later, Richmond drove over Crummett's torso as he

left the scene.

Richmond and Becky collected about $45 and an engraved

watch. Richmond considered the watch worthless because of

the engraving and discarded it. They reteracé to Becky's

apartment, divided the money, and Richmond and Faith Erwin

fixed with heroin. (Id. at 542-44.)

Deputy Peterson discovered Crummett's body in the middle

of the street about 5:00 a.m. the next day. There was a

2-inch diameter hole in the forehead. (Jd. at 488-91.)

Police also found two large pools of blood, one 30 feet west

of the body, and the other right next to it flowing from

Crummett's head. (Id. at 109-10.) Two bloody 4-inch

diameter rocks lay 29 and 13 feet west of the body. (ld.

at 120-22.) The left front wheel well, hubcap and much of

Co

the left side of the undercarriage of the station Lenen

Richmond drove bore blood and hair similar to Crummett's.

(Id. at 240-41, 256-64, 271-72.)

Ironically, John Diaz, Crummett's cousin, was working

in the County Coroner's Office the morning of August 27,

1973. He lifted the sheet from the face of the “John Doe”

but did not recognize his cousin. Only when he saw the

shrapnel wounds to the legs did he suspect the cadaver

might be Crummett. (Jd. at 214-18, 225-28.)

The pathologist concluded that a tremendous force,

probably the wheel of a car, crushed Crummett's skull.

That injury caused death. Because the injuries to the

chest and abdomen displayed no hemorrhaging, he opined they

were inflicted at least 30 seconds later, after the heart

ceased beating, by a force moving in the opposite

direction. (Id. at 155-66, 195-210, 240-68.)

In a statement to police, Richmond admitted he planned

the robbery, drove to the isolated locale, pulled Crummett

from the car, and beat him to the ground; he blamed Becky

Corella for running over Crummett. (Id. at 538-49.)

Sheila Dewey (aka Holt) stated that she knew that

Richmond had been driving the car August 24 through 26, the

period covering the murder. According to Sheila, Becky was

so short that she had difficulty reaching the clutch and

brakes. (Jd. at 379-86.)

Deputy Barkman said that no one he asked knew anything

about Becky Corella's being able to drive the car; Sheila

Dewey told him that Corella tried to drive it but could

not. (Id. at 276-77.) Officer Manricus saw Richmond

driving the car August 30, 5 days after the murder. (Id.

at 423-26.)

Defense counsel produced Regina Davis, who told the

jurors that Faith Erwin told her that Becky Corella drove

the car over Crummett. Upon cross-examination, however,

Davis admitted that she did not tell police that when they

questioned her December 12, 1973. (ld. at 633, 641.)

The First Sent :; i; ;

After an aggravation-mitigation hearing, the trial

court found that the state had proved two aggravating

circumstances, A.R.S. § 13-703(F)(2) (conviction of an

offense involving the use or threat of violence upon a

person), and A.R.S. § 13-703(F)(6) (the defendant did

commit the offense in an especially heinous and cruel

manner). The basis for finding the first circumstance was

Richmond's prior conviction for the armed kidnapping

(involving the use of a knife) of Raul Granadas in 1970.

(R.T. of Feb. 25, 1974, at 212.) The finding that “the

defendant did commit the offense in an especielly heinous

and cruel manner” was a finding that Richmond killed

Bernard Crummett. When the trial court considered possible

statutory mitigating circumstances, it rejected os

non-existent A.R.S. § 13-703(G)(4),? which read as

follows:

The defendant could not reasonably have foreseen

that his conduct in the course of the commission

of the offense for which the defendant was

convicted would cause, or would create a grave

risk of causing, death to another person.

A.R.S. § 13-703(G)(4). The trial court's refusal to find the

existence of this circumstance meant that the trial court

decided that Richmond could reasonably have foreseen that his

conduct would cause, or would create a grave risk of causing,

death to another person. Finding two aggravating factors and

insufficient mitigation to call for leniency, the trial court

sentenced Richmond to death.

While the direct appeal was pending, Richmond sought

post-conviction relief. He appended to his petition

affidavits from two people who said that Becky Corella told

them that she was driving the vehicle when it ran over

Bernard Crummett. In response to that, the prosecutor filed

an affidavit stating that, during the course of the trial,

the prosecutor spoke to Becky Corella in Tucson. She became

angry, professed her love for Richmond, and threatened to

take the stand for the defense and take the blame for the

1. At the time of the original sentencing in February,

1974, the aggravating and mitigating factors were found in

A.R.S. § 13-454(E) and (F). The legislature has since changed

the numbering of those statutes to A.R.S. § 13-703(F)

(aggravating factors) and § 13-703(G). (mitigating factors).

murder. The prosecutor informed Edward Bolding, nichmond's

trial counsel, during the state's case-in-chief, that Ms.

Corella was at that time “willing to take the rap” for

Richmond. Afterwards, the prosecutor saw Mr. Bolding

speaking with Ms. Corella in a small private office at the

courthouse. Despite her availability and apparent

willingness to testify, defense counsel did not call her at

trial, or at the sentencing. (Appendix B to this response,

1974 Affidavit of Prosecutor James Howard.)

The state's response to the first post-conviction

petition also included the affidavit of Detective Morris

Reyna. He spoke personally with Becky Corella in Los Angeles

on November 2, 1974. She adhered to her original statement,

that Richmond drove the car over Crunmett, and disclaimed any

contrary statements. Detective Reyna stated that Ms. Corella

was available for service of a subpoena. (Appendix Cl to

this Response, Detective Reyna's 1974 Affidavit.) Attached

to Detective Reyna's affidavit were Rebecca Corella's

Original statement of September 3, 1973, in which she stated

that Richmond ran over Bernard Crummett, and the transcribed

statement from Daniel McKinney taken at the Arizona State

Prison on November 6, 1974, in which he stated that Rebecca

Corella told him that Richmond had driven the car over

Crummett, but Richmond and Spencer Watson (another convicted

murderer) had threatened McKinney's life unless McKinney

testified otherwise in court. (Respondents’ Appendix C2-9.)

!

The trial court denied the petition for post-conviction

relief, and defense counsel consolidated review of that

denial with direct appeal.

On the first appeal, a unanimous Arizona Supreme Court

affirmed the conviction for murder and the denial of

post-conviction relief. State v. Richmond, 114 Ariz. 186,

560 P.2d 41 (1976), cert. denied, 433 U.S. 915 (1977). The

Arizona Supreme Court sustained the death penalty on one

aggravating circumstance, the prior conviction for armed

kidnapping. That court did not consider the especially

heinous, cruel, or depraved circumstance because Richmond

lacked sufficient mitigation to reduce the penalty to life.

114 Ariz. at 196-98, 560 P.2d at 51-53.

FIRST FEDERAL HABEAS PROCEEDING

In 1978 the United States District Court in Arizona

granted Richmond's petition for writ of habeas corpus. That

court upheld his conviction for first-degree murder, but

ruled that the Arizona death penalty statute, as it stood at

that time, was constitutionally infirm because it did not

allow for consideration of relevant mitigating factors not

specifically enumerated in the statute. Richmond v.

Cardwell, 450 F. Supp. 519, 526 (D. Az. 1978). Meanwhile,

the Arizona Supreme Court reached the same conclusion in

State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert.

denied, 440 U.S. 924 (1970). The Arizona Supreme Court

ordered Richmond resentenced in early 1979, but defense

counsel requested at least 10 continuances that pushed the

resentencing into March 1980.

RESENTENCING AND SECOND APPEAL

After a 3-day aggravation-mitigation hearing, the trial

court found that Richmond had been convicted of another

first-degree murder. (Richmond's Appendix D 2-3 attached

to the Petition for Writ of Certiorari.) The trial court

again found that Richmond had been convicted of a crime

involving the threat of violence, the armed kidnapping.

(Id.) The trial court again stated its conclusion that “the

defendant did commit the offense in this case in an

especially heinous and cruel manner.” (Id. at D-3.)

Moreover, as it did at the first sentenciny, the trial court

refused to find as a mitigating factor that Richmond could

not have reasonably foreseen that his conduct would cause, or

create a grave risk of causing, death to another person.

(Id. at D-3, D-4.) Although the trial court found several

mitigating factors, it was not persuaded that Richmond's

alleged change of character, upon which defense counsel

offered extensive testimony, was genuine. (Id. at D-5.)

2. Richmond's conviction for the first-degree murder of

Mary Dawson was affirmed by the Arizona Supreme Court in State

vy. Richmond, 112 Ariz. 228, 540 P.2d 700 (1975). Respondents

know of no documentation in the state courts, or in the fede:al

proceedings, to substantiate Richmond's allegation at page 10,

footnote 5, of the petition that he was acquitted on a third

murder charge because his defense was that Rebecca Corella

committed the murder.

-10-

i>

Because the state proved three aggravating fecto.s. and

Richmond could not produce substantial mitigation, the trial

court, in compliance with the Arizona statute, imposed the

death penalty.®

With one justice dissenting, four justices of the Arizona

Supreme Court again upheld Richmond's death sentence.

(Appendix C to the Petition.) Justice Feldman believed that

Richmond's mitigation warranted reducing the penalty to life.

(Appendix C to the Petition at C-13.) The five justices

rejected the trial court's finding that Richmond committed the

murder in an especially cruel manner. However, Justices Hays

and Holohan believed that the gratuitous violence, exhibited by

the second run over the victim's torso after the first run over

his skull crushed it and killed him, and the needless

mutilation of the victim warranted finding that Richmond

committed the murder in an especially heinous manner. (ld.

3. For the first time, Richmond complains that the element

of violence in the kidnapping conviction was established only

by the testimony of the victim, and that subsequent Arizona

case law has held such testimony improper to establish an

aggravating circumstance. (Petition for Certiorari at p.8.)

He cites State v. Schaaf, _.__ Ariz. ___, 819 P.2d 909, 919-20

(1991). He fails to riote that Schaaf cites State v. Gillies,

135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983), cert. denied,

470 U.S. 1059, 105 S. Ct. 1775 (1985), appeal after remand, 142

Ariz. 564, 691 P.2d 655 (1984). Gillies was decided

2-1/2 months before the Arizona Supreme Court issued its

opinion on Richmond's second appeal and 4 months before the

Arizona Supreme Court denied his motion for rehearing. State

v. Richmond, 136 Ariz. 312, 666 P.2d 57, cert. denied, 464 U.S.

986 (1983). He did not challenge the use of the kidnapping

conviction as an aygravating factor in his third state

post-conviction petition (filed after the second appeal), in

the district court, or before the Ninth Circuit.

nite

at 8.) Justices Cameron and Gordon disagreed iti! Vie

finding of heinousness, but they agreed that the death

penalty was appropriate because of Richmond's record for

violent crimes, particularly the other first-degree murder

conviction. (Id. at 11-13.)

Because this Court's decision in Enmund v. Florida, 458

U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), came

down after Richmond was resentenced, but before the Arizona

Supreme Court considered his appeal, the Arizona Supreme

Court took great care to discuss why Enmund did not prevent

imposition of the death penalty. That court noted that

Richmond planned the robbery, drove the victim into the

desert, pulled him from the car, and knocked him unconscious

to rob him. Faith Erwin's testimony, and appellant's own

statements admitted at trial, demonstrated that he threw

large rocks at the victim after he knocked him to the

ground. The state's evidence showed that Richmond drove the

vehicle over the victim and killed him. The Arizona Supreme

Court pointed out that the circumstantial evidence supported

Faith Erwin's testimony. 136 Ariz. at 317-18, 666 P.2d

at 62-63. In the alternative, the Arizona Supreme Court said

that, even if that court accepted Richmond's contention that

he was not driving the car, the demands of Enmund were still

satisfied because of Richmond's leadership, concoction of the

plan to rob, his use of violent force, his awareness that the

victim, if allowed to live, could identify him, and his

willingness to leave the wounded and unconscious victim alone

olde

in the desert co an uncertain fate. (Id.) With b, dissents,

on this point, the Arizona Supreme Court finished its

examination of the Enmund question with the following

statement: "The evidence in this case shows that appellant

intended to take a life." 136 Ariz. at 318, 666 P.2d at 63.

THE SECOND FEDERAL HABEAS CORPUS

In 1984, Richmond's attorneys filed a seco..] petition for

writ of habeas corpus in the district court. The district

court twice summarily denied relief, but the Ninth Circuit

remanded the case both times. The third time, the Honorable

Alfredo Marquez, in a lengthy opinion, rejected all

challenges and denied relief. Richmond v. Ricketts, 640

F. Supp. 767 (D. Ariz. 1986). The parties briefed the issues

and the Ninth Circuit heard oral argument before this Court

handed down Walton v. Arizona, 497 U.S. __, 110 S. Ch. 3047,

lll L. Ed. 2d 511 (1990), and Lewis v. Jeffers, 497 U.S.

110 S. Ct. 3092, 111 L. Ed. 20d 606 (1990). The Ninth Circuit

ordered supplemental briefing to consider the effect of

Walton and Jeffers, and heard a second oral argument. A

unanimous panel issued the opinion on December 26, 1990,

which the panel has twice amended slightly. The panel

unanimously rejected the petition for rehearing and the

suggestion for rehearing en banc; of 28 active judges, only

four dissented from the denial of rehearing en banc.

REASONS FOR DENYING THE WRIT

Richmond concedes that this Court's decision in Walton v.

Arizona makes it clear that the Arizona Supreme Court has

2i3q

}

developed a sufficiently narrowing construction ot the

especially heinous, cruel or depraved circumstance to

withstand constitutional scrutiny, and that the Arizona

Supreme Court itself may apply that narrowing construction

even if the trial court failed to. (Petition at p.16.)

Equally important, this Court's decision in Lewis v. Jeffers

restricts a federal court's review of a state court's finding

of an aggravating factor to whether any rational fact-finder,

viewing the evidence in the light most favorable to the

state, could have found the circumstance to exist.

Nonetheless, Richmond urges this Court to grant certiorari

for two reasons.

Ignoring the fact that both the trial court and the

Arizona Supreme Court found two other aggravating

circumstances, either of which required the imposition of the

Geath penalty unless Richmond produced substantial

mitigation, Richmond focuses upon the especially heinous

circumstance found by only two of the four justices who

believed that the death penalty was appropriate. He contends

that those two justices could not have found that factor

because neither the Arizona Supreme Court, nor the trial

court, determined who drove the car over the victim. The

record indicates that the trial court and the Arizona Supreme

Court did determine that Richmond drove the vehicle over

Bernard Crummett; the Ninth Circuit panel that studied the

record properly limited its review to whether any rational

-14-

fact-finder could have found the especially heinvus

circumstance applicable.

Richmond also contends that certiorari should be granted

to determine whether a federal court may ignore a state

court's determination that the state statute requires a

weighing of aggravating and mitigating factors against one

another. That misstates the question. The question, as the

panel in this case correctly and unanimously concluded, is

whether the Constitution forbids the imposition of the death

penalty upon the basis of two unchallenged aggravating

factors, either of which under the Arizona statute required

the death penalty, even if a third factor, found by only two

of the four justices who voted for death, might arguably have

been improperly found. Under such circumstances, the

Constitution does not require a state supreme court to remand

for a new sentencing.

I

THIS COURT SHOULD DENY CERTIORARI BECAUSE BOTH

THE TRIAL COURT AND THE ARIZONA SUPREME COURT DID

DETERMINE THAT RICHMOND DROVE THE CAR OVER

BERNARD CRUMMETT ANI) A RATIONAL FACT-FINDER,

UNDER THE CIRCUMSTANCFS OF THIS CASE, COULD HAVE

FOUND THE ESPECIALLY HEINOUS FACTOR APPLICABLE.

Richmond makes four points that, according to him, impair

his death penalty: (1) the sentencing decision in this case

“rested on the determination that the crime for which

petitioner was convicted was especially heinous and cruel";

(2) the two justices who found the especially heinous factor

efSe

may not have applied it properly; (3) even if the Ninth Circuit

was correct in concluding that a rational fact-finder could have

found the especially heinous factor, that conclusion can not be

sustained because no one ever determined who drove the car over

the victim; and (4) although the Arizona Supreme Court

apparently did decide that Richmond drove the care over Bernard

Crummett, that court supposedly was incapable of making that

determination because of conflicting evidence. (Petition for

Certiorari at pp..7-23.) Richmond relies in part on the dissent

of four justices from the denial of 1tehearing en banc. None of

those justices was on the panel that studied the full record in

this case. The panel decision was unanimous.

Richmond's first eritor is stating that the sentencing

decision in this case rested on the determination that his crime

was especially heinous. (Petition for Certiorari at 17.) The

sentencing decision in this case involved the unchallenged

finding of two other aggravating circumstances, one involving

the threat of violence during an armed kidnapping, and the other

involving a separate conviction for another first-degree

murder. Only two of the five justices of the Arizona Supreme

Court found the especially heinous factor applicable, while none

of the five found the murder to be especially cruel. For that

reason, the district court held that Richmond had no standing to

challenge the constitutionality of the circumstance because a

majority of the Arizona Supreme Court found it not to exist and

oiGn

did not base the sentence of death upon it. Richmond ve

Ricketts, 640 F. Supp. 767, 795-96 (D. Ariz. 1986).

Richmond does not appear to challenge the limiting

construction of the especially heinous factor applied by

Justices Hays and Holuhan. tWNowever, because he did so below in

the briefs to the Ninth Circuit, respondents set forth here in

full the facts upon which those two justices based their

conclusion:

“Heinous” has been defined as “hatefully or

shockingly evil; grossly bad,” and “depraved” is

"marked by debasement, corruption, perversion or

deterioration.” State v. Knapp, supra. Heinous

and depraved involve the mental state and

attitude of the offender as reflected in his

words and actions. State v. Gretzler, supra;

State v. Poland, supra; State v. Lujan, supra.

In Gretzle:, supra, we discussed facturs which

lead to a finding of heinousness or depravity.

One factor is the infliction of gratuitous

violence on the victim; another related factor is

the needless mutilation of the victim. Here the

victim was already unconscious and bleeding when

he was run over not once, but twice, each time

from a different direction. The evidence

indicates that the first run by the vehicle was

over the victim's head crushing his skull and

killing him. The second run of the vehicle was

over the body of the victim. The investigating

officers found, at the location of the murder,

two large pools of blood separated by about 30

feet, which was consistent with the body having

been run over and dragyed to where it was found.

Again the fact that the victim in the instant

case was run over twice and his skull was

crushed, we find to be a ghastly mutilation of

the victim.

eiPe

The p.ecsence of any one of the three ele. Jnts

- cruel, heinous, or depraved - is sufficient to

constitute an aggravating circumstance. State v.

Bishop, 127 Ariz. 531, 622 P.2d 478 (1980). We

believe the facts of this case set it “apart from

the normal first degree mirilers.” State v.

Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979).

The trial court was correct in finding the

offense was committed in an especially heinous

manner. It is also evident that the trial court

could have found that the cffense was committed

in an especially depraved manner.

I

State v. Richmond, 136 Ariz. at 319, 666 P.2d at 64.

The Ninth Circuit recognized that this Court in Walton v.

Arizona upheld the constitutionality of Arizona's especially

heinous, cruel or depraved circumstance on the basis of the

limiting construction the Arizona Supreme Court had applied.

(Appendix A to this Response at 19-21.) Rejecting Richmond's

assertion that the two justices did not apply a sufficiently

limiting construction in his case, the Ninth Circuit cited

from the Arizona Supreme Court opinion the same passage

respondents have cited above. (Jd. at 21-22.) Cognizant of

the restrictions placed upon federal teview by this Court's

decisions in Walton and Lewis, the Ninth Circuit applied the

reasonable fact-finder standard of Lewis vy. Jeffers to the

especially heinous circumstance found by two state justices.

(Id. at 23-26.) That court concluded that, under the

definition applied by the Arizona Supreme Court, a rational

fact-finder “could indeed have found Crummett's murder

heinous or depraved so as to warrant the penalty of death.”

(Id. at 26.)

-18-

Not directly questioning that conclusion, Riv..mond takes

a different tact. He blends an Enmund question with the

applicability of the especially heinous factor. He says

that, even assuming the panel was correct in its conclusion

that a rational fact-finder could have found A.R.S.

§ 13-703(F)(6) applicable, none of the Arizona justices could

have done that because they never resolved the factual

predicate for applying the limiting construction to the facts

of this case, i.e., who caused the victim's death? (Petition

for Certiorari at pp.20-21.)

Respondents have pointed out that, at both the original

sentencing and the resentencing, the trial court found the

existence of the especially heinous circumstance. In making

that finding, the trial court stated that “The defendant did

commit the offense in an especially heinous and cruel

manner.” Because the only offense to which that circumstance

applied was first-degree murder, the trial court clearly was

saying that Willie Lee Richmond committed the murder. One

cannot commit an offense in a particular manner unless one

commits the offense. On the second appeal after

resentencing, the Arizona Supreme Court noted the trial

court's finding of the especially heinous factor, and that

court's conclusion that the defendant committed the offense.

136 Ariz. at 319, 666 P.2d at 74.

Performing its independent review, the Arizona Supreme

Court considered whether Enmund v. Florida prohibited

-19-

imposition of death. First, that court noted thee Richmond

masterminded the plan to rob Bernard Crummett, drove the

station wagon into the desert, pulled Crummett from it and

knocked him to the ground. Then, according to Faith Erwin's

trial testimony and Richmond's own statements admitted at

trial, Richmond picked up large rocks and threw them at the

victim's head. The bloody rocks found at the scene, and the

nature of some of the wounds to Crummett's head, corroborated

Erwin's testimony and Richmond's admissions. 136 Ariz.

at 318, 666 P.2d at 63. The Arizona Supreme Court then said

the following:

Even if we accept appellant's contention that

he was not driving the car when the victim was

run over, we do not believe this case falls

within the parameters of Enmund. The facts from

the appellant's version indicate that he was the

leader of the group; he was the first to use

violent force on the victim; he was aware that

the victim, if allowed to live, could identify

him. Appellant, from his version of the facts,

was willing to leave the wounded and unconscious

ictj esert to an uncertain fate.

Appellant contends that Becky Corella was the one

who drove the car over the victim. There is no

evidence that appellant protested or showed any

emotion when the victim was twice run over. The

appellant's version of the facts indicates

appellant played an integral part in the events

which caused the victim's death, and he willingly

Ww e

t) ictim's d

The evidence presented by the state was that

the appellant drove the vehicle over the victim,

thus killing him. The testimony of Faith Erwin

was that the appellant was the driver at the time

the victim was run over. The circumstantial

evidence supports Faith's testimony. The

Circumstances show that appellant was the driver

when the group left for the desert. The other

o26<

woman, Becky Corella, was so short in stature

that it was difficult for her to operate an

automobile. Appellant was the leader of the

group and directed the operation. With such ;

support we believe the trial judge was justified

in_concluding that appellant drove the vehicle

that was used to kil] the victim.

Under either version of the facts appellant

does not fit within the sphere of defendants the

Enmund court seeks to protect from capital

considerations. The evidence in this_case shows

that appellant intended to take a life.

136 Ariz. at 318, 666 P.2d at 63 (emphasis supplied). It is

difficult to conceive how the Arizona Supreme Court could have

stated more emphatically that its review of the record indicated

that the trial judge did conclude that Richmond drove the vehicle

over Crummett, and that the Arizona Supreme Court itself was .

persuaded that the evidence showed that Richmond intended to take

a life. Respondents remind the Court that, at both

sentencings, the trial court specifically rejected the mitigating

circumstance found in A.R.S. § 13-703(G)(4). That meant the

trial court rejected any contention that Richmond could not

reasonably have foreseen that his conduct would cause, or would

4. The Ninth Circuit noted that the Arizona Supreme

Court's findings also satisfied Tison v. Arizona, 481 U.S. 137,

107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987). Having beaten ~

Crummett unconscious, Richmond left him in the street at night,

indifferent to his fate. (Appendix A to this response

at 31-33.) At p.14, footnote 6, in his opening brief to the

Ninth Circuit, Richmond conceded that his trial counsel

presented testimony that at least six to eight cars drove down

that street between the time Crummett was murdered and police

discovered his body at 5 a.m. Defense counsel was trying to

show that some other car might have run over Crummett. That

only served to highlight Richmond's reckless indifference to

human life, a mental state this Court held in Tison, sufficient

to warrant the death penalty.

x

l

create a grave risk of causing, death to another person. That

the trial court did not explicitly say “This Court finds that

Willie Richmond drove the car over Bernard Crummett” is

immaterial. None of that delracts from the trial court's clear

findings, one in aggravation, and one in rejection of mitigation,

that Richmond “did commit the offense in an especially heinous

and cruel manner" and “could reasonably have foreseen that his

conduct would cause the death of another person.”

Even if the trial court had made no finding about who was

driving the car, the Arizona Supreme Court was free to do that

under this Court's decision in Cabana v. Bullock, 474 U.S. 376,

106 S. Ct. 689, 88 L. Ed. 2d 704 (1986). Here, as below,

Richmond attempts to avoid Cabana by saying that, whenever there

is a conflict in the evidence, the state appellate court cannot

resolve that conflict but must remand to the trial court. Any

passing allusion to that in Cabana was dictum, not part of the

holding. The only eyewitness who ever testified under oath at

any proceeding, Faith Erwin, said that Willie Lee Richmond drove

the car over Bernard Crummett. Although Becky Corella was

available to testify at trial, defense counsel did not call her,

nor did he call her at the original sentencing. That was

probably because of the affidavits of the prosecutor and

Detective Reyna submitted in November 1974, indicating that

Corella was available to testify and that she would stick by her

Original statement that Richmond drove the car over Crummett.

(Appendices B and C to this Response.) At the mitigation hearing

@22<

preceding the .esentencing, Regina Collins (formecly Davis) said

that Faith Erwin told her that Recky was driving. On

crouss-examination, however, Regina admitted that Faith never said

anything about a man being run over, and that some of the things

to which Regina was testifying could be due to “some things that

I have heard or that had been planted in my mind.” (R.T. of

Mar. 12, 1980, at 60, 7Q.) Daniel McKinney testified at the

resentencing that Becky Corella told him that she drove the

station wagon over Crummett, but the state impeached him

thoroughly with a previous statement he gave to police in which -

Richmond admitted to him having driven the station wagon over

Crummett, and sent him word in prison that Richmond and Spencer

Watson (another convicted murder) would kill McKinney if McKinney

did not testify that Becky Corella ran over Crummett. (Id.

at 116-24.) Although the prosecution went to considerable effort

to locate both Faith Erwin and Becky Corella, the only

eyewitnesses to the murder, and defense counsel stipulated on the

record that the prosecutor had provided him with their locations,

defense counsel called neither woman at the resentencing. (R.T.

of Mar. 11, 1980, at 29-30.) Thus, no eyewitness to the murder

ever testified under oath in contradiction of Faith Erwin's trial

testimony. It seems more than a fair inference that the refusal

of two different defense attorneys, at the first sentencing and

at resentencing, to call either Corella or Erwin was due to lack

of confidence that either woman would have said that Richmond was

not driving the car.

a23e

———

Respondents have previvusly pointed out that dther evidence

at trial strongly corroborated Faith Erwin's testimony. For

instance, Sheila Dewey (a/k/a Holt) stated that she knew that

Richmond had been driving the station wagon from August 24 to

August 26, the period covering the murder. According to Sheila,

Becky Corella was so short, that she had difficulty reaching the

clutch and the brakes. (R.T. at 379-86.) Deputy Barkman said

that no one he asked knew anything about Becky Corella's being

able to drive the station wagon; Sheila Dewey told him that

Corella could not drive it. (Ig. at 276-77.) Officer Manricus

saw Richmond driving the car on August 30, 5 days after the

murder. (Jd. at 423-26.) This testimony prompted the Arizona

Supreme Court to observe in its opinion after resentencing that

the circumstantial evidence supported Faith Erwin's testimony.

136 Ariz. at 318, 666 P.2d at 63.”

With that kind of evidence in the record, it is ridiculous to

maintain that the Arizona Supreme Court could not independently

determine that Richmond drove the station wagon over Crummett.

Having considered the Enmund challenge, the Ninth Circuit

concluded that “The Arizona Courts have predicated Richmond's

sentence upon a sufficient finding of criminal intent.”

5. This Court noted in Lewis _v,. Jeffers that state court

findings of aggravating factors often require a sentencer to

"resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate

facts.” 1108S. Ct. at 3103, quoting Jackson v. Virginia, 443

U.S. at 319, 99 S. Ct. at 2789.

o246e

(Appendix A to this Response, at 33.) Richmond cannot

demonstrate, from a fair reading of the entire record, that no

rational fact-finder, viewing the evidence in the light most

favorable to the state, could have found the especially heinous

circumstance to exist, nor can he establish that the Arizona

courts did not make a finding that he killed and intended to

kill.

II

EVEN IF THE ESPECIALLY HEINOUS FACTOR WERE

ELIMINATED, NOTHING IN CLEMONS V. MISSISSIPPI OR

THE PRACTICE OF THE ARIZONA SUPREME COURT IN ITS

REVIEW OF CAPITAL CASES WOULD REQUIRE A REMAND

FOR RESENTENCING BECAUSE THE TWO REMAINING,

UNCHALLENGED AGGRAVATING CIRCUMSTANCES, AND

RICHMOND'S FAILURE TO ESTABLISH SUFFICIENT

MITIGATION, JUSTIFY THE DEATH PENALTY.

Richmond maintains that the Ninth Circuit misunderstood

the procedure utilized by the Arizona Supreme Court in that

court's review of capital cases. He implies that. because it

is the Arizona Supreme Court's usual practice to remand a

case for resentencing when it eliminates an aggravating

circumstance, that the Arizona Supreme Court should have done

that in his case because three of the five justices did not

agree that the especially heinous circumstance applied. The

real constitutional question, however, is whether there is

any prohibition against a state supreme court's affirming the

death penalty without remanding to the trial court when the

state supreme court upholds two other valid aggtavating

circumstances.

Below, Richmond relied upon the Ninth Circuic’s en banc

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

1988), to argue that invalidation of any aggravating

circumstance required a remand for resentencing. (Appendix A

to this Response at 28.) The panel, reading Adamson

correctly, noted that Adamson merely stated that it was the

common practice of the Arizona Supreme Court to remand when

that court invalidated an aggravating circumstance. (]d.)

Nothing in Adamson suggested that the United States

Constitution required a remand. (]d.)

Although the Arizona Supreme Court may remand when it

eliminates an aggravating circumstance, it reserves the

discretion to determine whether the remaining aggravating

circumstances justify the imposition of the death penalty

without remanding to the trial court. §tate v. Brewer,

CR-88-0308-AP (Ariz. Sup. Ct., Jan. 28, 1992) (elimination of

one of two aggravating circumstances did not necessitate a

remand for resentencing or impair the death penalty); State

v. Correll], 148 Ariz. 468, 715 P.2d 721 (1986) (elimination

of one of four aggravating circumstances did not require

remand); State v. McCall], 139 Ariz. 147, 677 P.2d 920 (1983),

cert. denied, 467 U.S. 1220 (1984) (elimination of one of

three aggravating circumstances did not require a remand);

State v. Jeffers, 135 Ariz. 404, 661 P.2d0 1105, cert. denied,

464 U.S. 865 (1983) (eliminalion of one of two aggravating

circumstances did not require a remand); State v. Blazak, 131

o26-

ee a ws — ——_i

Ariz. 598, 643 P.2d 694, cert, denied, 459 U.S. .J2 (1982)

(elimination of one of five aggravating circumstances did not

require remand); State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020

(1981), cert. denied, 456 U.S. 984 (1982) (elimination of one

of three aggravating factors did not require resentencing);

State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied,

449 U.S. 1067 (1980) (elimination of one of three aggravating

circumstances did not require resentencing). In this case,

as in every capital case, the Arizona Supreme Court made an

independent examination of the entire record to determine the

existence of aggravating and mitigating circumstances, the

weight to give each, and the propriety of the death penalty.

The Arizona Supreme Court explicitly stated that it was

making that kind of a review in this case. State v.

Richmond, 136 Ariz. at 320, 666 P.2d at 65.

Two of the four justices who believed that the death

penalty was properly imposed did not find the existence of

the especially heinous factor. Nonetheless, in their

independent evaluation of aggravation and mitigation,

Justices Cameron and Gordon believed that Richmond's prior

record of violent crimes, a conviction for armed kidnapping

and another separate conviction for first-degree murder,

warranted the death penalty. State v. Richmond, 136 Ariz.

at 323-24, 666 P.2d at 68-69. Richmond argues that because

the other two justices who voted for the death penalty

believed that the crime was also especially heinous (a

e2?<

mistake, in Richmond's estimation) the Arizona supreme Court

could not affirm the death penalty, but was obliged to remand

to the trial court for resentencing. There are three flaws

in Richmond's reasoning: (1) failure to properly evaluate

the nature of the Arizona statute; (2) a mistaken reading of

this Court's decision in Clemons v. Mississippi, 44 U.S. __,

110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); and (3) failure to

take into account this Court's decision in Barclay v.

Florida, 463 U.S. 939, 103 S. Ct. 3418, 77 L. Ed. 2d 1134

(19863). ;

In Arizona, gone aggravating circumstance mandates the

death penalty unless the defendant can produce substantial

mitigation. A.R.S. § 13-703(E). This Court upheld that

statute in Walton v. Arizona, 110 S. Ct. at 3056. This is a

fundamental and radical distinction from the statutes in

Clemons and Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733,

77 L. Ed. 24 235 (1983). Aggravating circumstances in

Georgia merely make the defendant eligible for the death

penalty, they do not determine punishment. Clemons v.

Mississippi, 110 S. Ct. at 1446. In Mississippi, on the

other hand, the finding of aggravating factors is part of the

sentencing determination. Id. However, unlike Arizona, the

Georgia and Mississippi statutes do not require imposition of

the death penalty if an aggravating circumstance is found.

To the contrary, the Georgia and Mississippi statutes allow

the sentencers, the jurors in those states, to decline to

-28-

impose the death penalty, regardless of the numbet of

aggravating factors proved or the lack of mitigation. Zant

v. Stephens, 462 U.S. at 871-72, 103 S. Ct. at 2740 (the

sentencer has absolute discretion not to impose death);

Clemons vy. Mississippi, 110 S. Ct. at 1445 (the trial court

instructed the jurors several times that they need not

sentence Clemons to death even if they found no mitigating

circumstances). The panel that decided Richmond's case was

quite aware of the distinction between the Arizona statute

and the Mississippi statute in Clemons. (Appendix A to this

Response at 29.)

Clemons v. Mississippi does not require resentencing when

the state a court eliminates an aggravating

circumstance:

{T)he state court in this case, as it had in

others, asserted its authority under Mississippi

law to decide for itself whether the death

sentence was to be affirmed even though one of

the two aggravating circumstances on which Lhe

jury had relied should not have been or was

The court did

mproperly p ;

not consider itself bound in such circumstances

to vacate the death sentence and to remand for a

new sentencing proceeding before ajury. We have

State law. .

Clemons v. Mississippi, 110 S. Ct. at 1447 (emphasis

supplied). This Court remanded Clemons to the Mississippi

Supreme Court because this Court could not tell whether the

Mississippi Supreme Court —o the remaining valid

aggravation against the mitigation without considering the

-29-

admittedly unconstitutional circumstance, or app.ied harmless

error review to uphold the death sentence. 110 S. Ct.

at 1444. There is another crucial distinction between the

aggravating circumstance in Clemons and Arizona's especially

heinous circumstance. This Court noted at the beginning of

its opinion in Clemons that the jury instruction about the

especially heinous, atrocious or cruel circumstance “was

constitutionally invalid in light of our decision in Maynard

v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d

372 (1988)." 1108S. Ct. at 1444. By contrast, this Court

has upheld the Arizona Supreme Court's limiting construction

of the especially heinous, cruel or depraved circumstance.

Walton v. Arizona.

Appreciating the significant distinctions between the

Arizona statute and the statute in Clemons, the Ninth Circuit

rejected the argument that elimination of one aggravating

factor would necessitate a remand:

fundamentally different from ‘tha ahatete.. at issue

in Clemons. The Mississippi law that Clemons

considered authorizes the death penalty if

"*there are insufficient mitigating circumstances

. « « to Qutweigh the aggravating

circumstances.’'” ld. at 1446 n.2 (quoting Miss.

Code Ann. § 99-19-101(3)(c) (Supp. 1989))

(emphasis added). Arizona's law mandates the

death penalty “if the court finds one or more of

the [enumerated] aggravating circumstances

and that there are no mitigating circumstances

sufficiently substantial to call for leniency.”

Ariz. Rev. Stat. Ann. § 13-703(E) (emphasis

added). The difference is significant: a

-30-

'

conclusion by the Arizona courts that there «re

no substantial mitigating circumstances is

separate from and independent of any conclusion

regarding the existence of aggravating

circumstances. Invalidation of an aggravating

circumstance does not mandate reweighing or

require resentencing where the court has found

that the prosecution has met its burden of

establishing aggravation sufficient to warrant

the state's harshest penalty two or three times

and that the defense has failed to establish

mitigating circumstances sufficiently substantial

to call for leniency. See id. §§ 13-703(C),

(E). Under the statute at issue in Clemons, the

invalidation of an ayyravating circumstance

necessarily renders any evidence vf mitigation

“weightier” or more substantial in a relative

sense; the same, however, cannot be said under

the terms of the Arizona statute at issue here.

Nothing in the Arizona statute sugyests the need

for plenary reweighing where the record still

reveals that there are “one or more of the

[enumerated] aggravating circumstances .. . and

that there are no mitigating circumstances

sufficiently substantial to call for leniency.”

1d. § 13-703(E).

(Appendix A to this Response at pp.29-30; emphasis

supplied.)

Although Richmond's contention that resentencing is

necessary in this case turns on the erroneous assumption that

no rational fact-finder could have found the especially

heinous circumstance applicable, an assertion rejected by the

Ninth Circuit, even if he were right, the Constitution still

would not require resentencing. In Zant v. Stephens, this

Court said that one of the factors to consider in determining

the propriety of a death sentence based in part upon an

admittedly unconstitutionally vague circumstance was the

reason that circumstance was held invalid. 462 U.S. at #64,

-31-

103 S. Ct. at 2736. Although the Georgia Supreme Court,

prior to considering Stephens, had declared

unconstitutionally vague the statutory aggravating

circumstance concerning “a substantial history of serious

assault and criminal convictions,” that court upheld

Stephens’ death penalty based on two other agyravating

circumstances, and this Court affirmed. In affirming, this

Court noted that the Georgia Supreme Court said that it might

have reached a different conclusion if the evidence received

by the jurors had been improper or some other arbitrary

factor had entered into the sentencing decision. However,

the Georgia Supreme Court said that the evidence of Stephens’

prior assaultive behavior was properly received by the jurors

and could properly have been considered. 462 U.S. at 873,

103 S. Ct. at 2740. This Court accepted that reasoning and

found, as an additional safeguard against arbitrary

imposition of the death penalty, the Georgia Supreme Court's

review of the record and the death penalty to determine

whether the sentence was arbitrary or disproportionate. 462

U.S. at 876, 103 S. Ct. at 2742. This Court noted that

statutory aggravating circumstances play a constitutionally

necessary function at the stage of legislative definition,

but the Constitution does not require the sentencer to ignore

other possible aggravating factors in the process of

selecting those who will actually be sentenced to death. 462

U.S. at 678, 103 S. Ct. at 2743.

-32-

The Arizona statule requires the sentlencer to consider

any evidence relating to aggravation or mitigation that was

introduced at trial. A.R.S. § 13-703(C). Thus, there was

absolutely nothing improper in the consideration by two

Arizona justices of the facts at trial demonstrating the

gratuitous violence inflicted upon Bernard Crummett, two

passes over his body from different directions after the

first pass killed, or the needless mutilation of his body.

Richmond has never argued that the sentencer could not

consider these facts, nor could he reasonably do so. His

argument is that the two Arizona justices could not consider

these facts as a statutory aggravating circumstance. Even if

he were right, the Constitution and this Court's cases would

not have forbidden those two justices from considering the

manner in which Richmond murdered. Because two other

unchallenged aggravating circumstances fully support the

death penalty, and the two justices who found the especially

heinous factor considered nothing impermissible or

unconstitutional, the Constitution dves not tequire a

resentencing.

The conclusion above is strengthened by this Court's

decision in Barclay v. Florida, 463 U.S. 939, 103 S. Ct.

3418, 77 L. Ed. 24 1134 (1983), decided the same year as Zant

vy. Stephens. The trial judge, a veteran of World War II,

found that Barclay's extensive criminal record was an

aggravating circumstance. 463 U.S. at 944, 103 S. Ct.

-~33-

at 3422. The State of Florida conceded before this Court

that, under Florida law, a defendant's prior criminal record

is not a proper agyravatiny circumstance. Jd. at 946, 103

S. Ct. at 3423. In addition, Barclay complained that the

trial judge added a second improper aggravating factor by

discussing the racial motive for the murder and comparing it

with the judge's experience in World War 82 when he saw Nazi

concentration camps. Id. at 948-49; 103 S. Ct. at 3424.

This Court rejected both contentions. Even though the trial

court's finding of Barclay's criminal record as a

non-statutory aggravating circumstance violated Florida law,

nothing in the Constitulion prohibited the trial court from

considering that criminal record Or the racial motive. 463

U.S. at 956, 103 S. Ct. at 3428. By the same token, nothing

in the Constitution prevented two Arizona justices from

considering the properly admitted trial evidence about the

gratuitous violence and needless mutilation inflicted upon

Bernard Crummett from two passes of the car over his body.

-34-

CONCLUSION

The Ninth Circuit has correctly applied this Court's

decisions in Walton v. Arizona and Lewis v, Jeffers, and

properly performed its limited review. Willie Lee Richmond

has had the benefit of two sentencings, two direct appeals,

three state post-conviction petilions, and two federal habeas

corpus proceedings. He has had every opportunity to present

any valid reason why the death penalty should not be upheld.

This August will mark the 19th year since Richmond killed

Bernard Crummett and, on a separate occasion, Mary Dawson.

Respondents respectfully ask this Court to bring this case to

@ conclusion by denying certiorari.

Respectfully submitted,

GRANT WOODS

Attorney General

PAUL J. McMURDIE “

Chief Counsel

riminal Appeals Section

Assistant Attorney General

(Counsel of Record)

Attorneys for RESPUNDENTS

aie

THREE COPIES of this Brief were Jeposiled for mailing -

this 18th day of February, 1992, to:

TIMOTHY K. FORD

MacDonald, Hoagque & Bayless

1500 Hoge Building

Seattle, WA 98104

Attorney for PETITIONER

arbara Ling&ay APPENDICES

Legal Secretary

Criminal Appeals Section

1275 W. Washington, Ist Floor °

Phoenix, Arizona 85007

HC5-188

0117D/b1/CMC

=96-

APPENDIX A

ee ewe -

|

die hel

.

-

—Tee ©

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Wir Lee Ricmonn,

Petitioner-Appellant, No, 86-2382

Ee D.C. No.

Samu. A. Lewts,* Director, CV-84-010-T-ACM

Arizona Department of ,

Corrections; and Rocir Crist, yes oben

Superintendent of the Anzona OPINION

State Prison, '

Respondents-Appellees.

Appeal from the United States Distnct Court

for the District of Anzona

Alfredo C. Marquez, District Judge, Presiding

Argued and Submitted September 18, 1987

Submission Vacated September 22, 1987

Reargued and Submitted September 27, 1990

. San Francisco, California

Filed December 26, 1990

Amended January 14, 1992

Before: Arthur L. Alarcon and Diarmuid F. O’Scanniain,

Circuit Judges, and Albert Lee Stephens.** Distnct Judge.

Opinion by Judge O'Scannigin

*Samuel A. Lewis and Roger Crist have been subsututed for their

respective predecessors in office, James R. Ricketts and Donald Wawrza-

szek, pursuant to Federal Rule of Appellate Procedure 43ic 1).

**The Honorable Albert Lee Sicphens. United States District Judge for

the Central Distnct of Califorma. situng by designation.

435

~

A-|

+ wé” «

OPINION

O’SCANNLAIN, Circuit Judge:

Willie Lee Richmond, who was sentenced to death upon

conviction of first-degree murder in Arizona state court.

appeals from the district court's denial of his petition for

habeas corpus. He contends that imposition of capital punish-

ment will violate his rights under the sixth, eighth, and four-

teenth amendments. We now affirm.

I

A

This case arises from Richmond's conviction in 1974 for

first-degree murder in the death of Bernard Crummett. On an

August evening seventeen years ago, the victim met Rebecca

Corella, a nude dancer, at the Bird Cage Bar in Tucson, Ari-

zona. After leaving the bar, the pair met Richmond in the

bar's parking lot where Corella attempted to persuade Rich-

mond to allow his fifteen-year-old girlfriend, Fait Erwin, to

prostitute herself with Crummett. Richmond and Erwin

refused, and after a brief conversation, Corella agreed to have

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Riciwonn v. Lewis 44)

sex with Crummett herself. Crummett thereupon produced a

twenty-dollar bill, which Corella handed to Richmond and

which Richmond palmed and surreptitiously exchanged for a

ten. A brief argument ensued as Richmond and Corella

insisted that Crummett had only given them ten dollars.

Crummett eventually yielded and agreed to pay more. As

he reached into his wallet a second time, Corella observed

what seemed a considerable amount of cash, and she commu-

nicated her observation to Richmond. All four individuals

then proceeded in a borrowed station wagon to Corella’s

motel-room apartment. There, just as Corella and Crummett

emerged from the bedroom. Richmond whispered to Erwin

his intention that they rob Crummett, explaining that they

should not commit the crime in the apartment because Crum-

mett might remember the surroundings.

The group then left the motel and with Richmond as their

driver proceeded to the end of a road on the outskirts of Tuc-

son. Richmond thereupon stopped the car, and either Rich-

mond or Corella — the testimony conflicts — told Crummett

to get out because the car had suffered a flat tire. Richmond

then assaulted Crummett, beating him with his fists and

knocking Crummett to the ground. As Crummett lay motion-

less, Richmond pelted him with rocks. Corella, meanwhile.

grabbed Crummett’s wallet. According to Erwin, who admit-

ted that she was vomiting “coming down” from

during the incident, the following events then transpired

Oe lee A ke Nl ae el lll

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43> Ricmonp v. Lewis

And where did you go from there?

Back to the Sands Motel.

Did you run over anything?

> © > &

Yes, a man. It was a bump, after we were leav-

ing.

Q. After you felt that bump, was anything said in

the car when you felt that bump?

A. Becky [Corella) said, it felt like a man’s body.

Q. Who was driving the car?

A. Willy [sic].

Under cross-examination, Erwin stood by her contention

The police found Crumment’s body at five o'clock the fol-

lowing morning. The examining pathologist testified at tal

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Ricumonp v. Lewis 443

pathologist attnbuted to an automobile tire, which impacted

the body from th. Opposite direction at least thirty seconds

after the fatal blow. He concluded, therefore, that the victim

was twice run over — once while alive but presumably

unconscious and a second time after death. A police Jetective

also testified to the discovery of human blood and hair on the

undercarnage of the recovered station wagon.

Shortly after the night of Crummett’s death. Richmond was

arrested on two unrelated murder charges. As he awaited pro-

ceedings on those charges in jail, he was served with an arrest

warrant for the murder of Crummett. and he agreed to waive

his rights and make a statement at that time. Although he

‘admitted to robbing ‘and beating Crummett, he claimed that he

was not the driver when Cru: umett was run over. In his state-

ment, which was taped and played at trial, Richmond insisted.

_ At the conclusion of the evidentiary phase of the trial, the

judge instructed the jury that Richmond could be convicted of

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+44 Ricivionp v. Lewis

first-degree murder upon either a finding of premeditation or

a felony-murder theory:

Murder is the unlawful killing of a human being.

with malice aforethought.

The unlawful killing of a human being, whether

intentional, unintentional or accidental, which occurs

as a result of the perpetration of, or attempt to perpe-

trate, the crime of robbery and where there was in

the mind of the perpetrator the specific iment to

commit such cnme, is murder of the first degree.

If a human being is killed by any one of several per-

sons engaged in the perpetration of, or attempt to

perpetrate, the crime of robbery, all person{s] who

ing such cnme or who knowingly and with criminal

intent aid and abet its commission or. whether pres-

em or not, who advise and encourage its commis-

sion, are guilty of murder in the first-degree, whether

the killine is j ee pee Lonel or aacidenadt

Upon these and other instructions, the jury found Richmond

guilty of first-degree murder on February 5, 1974."

‘On August 9. 1974. Rachmond «as convicted of furst-<degree murder on

Ove of the two unrelated charges and sentenced to life umpnsonment © It

Is BO disputed thal the killing that was the basis of th{at) copvicuon

occurred prnor to the murder of Bernard Crumment.” Richmond . Ricketis.

640 F. Supp. 767, 780 (D. Ariz. 1986). At the time of that earlier murder.

“the death (penalty) had not yet become effecuve [am Anzona] so that the

sentence of life imprisonment was the only possible sentence.” /d.

Ruchmond was acquitted of the other murder See id.

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Ricwmonp v. Lewis 446

After a separate hearing held before the trial judge alone,

the court pronounced its sentence:

The court rendered a special verdict finding the exis-

tence of two aggravating circumstances: 1) that the

defendant was previously convicted of a felony

involving the use or a threat of violence on other per-

sons, and 2) that the defendant had commitied the

offense in an especially heinous and cruel manner. It

found none of the statutory mitigating circumstances

to be present. Based on its findings, the cour sen-

tenced the defendant to death.

State v. Richmond, 114 Ariz. 186, 189, 560 P.2d 41. 44, cert.

denied, 433 U.S. 915 (1976).

zona death penalty statute was constitutional, both as wntten

ant as applied. See 114 Ariz. at 190-98, 560 P.2d at 45-53.

After the United States Supreme Court denied certiorari on

direct appeal. Richmond petiuoned for a wnt of habeas corpus

ao ..

446 Richmonn v. Li wis

the judge at sentencing. The district court upheld RichmonJ's

conviction but ruled the Arizona statute unconstitutional

under the eig! th and fourteenth amendments for its failure to

allow consideration of a couviet’s character. Richmond v.

Cardwell. 450 F. Supp. 519 (D. Ariz. 1978). The court there-

fore vacated Richmond's sentence.’

At a second sentencing hearing in larch 1980, the state

trial court again found no mitigating circumstances sufficient

wo warrant leniency, and it resentenced Richmond to death.

Once again, on mandatory appeal, the Arizona Supreme Coun

affirmed the sentence. State v. Richmond, 13% Ariz. 312, 666

P.2d $7. cert. denied, 464 U.S. 986 (1983). Independently

reviewing the record,’ the state supreme court found that

Richmond had actively participated in the robbery and had

played an integral role in the events leading up to Crummett 's

death. Although it acknowledged that the force of Rich-

mond’s manual blows had not caused the death, the court held

that circumstantial evidence supported Erwin’s testimony that

Richmond had been the lethal driver. It found that the sen-

tence was appropriate under these conditions. Again on direct

review, the United States Supreme Court denied ceruorari.

464 U.S. 986 (1983).

Richmond then pursued a second writ of habeas corpus in

federal court. After a brief hearing, the district court denied

the writ and dismissed the petition. Four days later, a panel of

this court stayed Richmond's execution and issued a cerufi-

cate of probable cause to provide time for a full-fledged

appeal. In due course, the court affirmed dismissal for failure

to exhaust state remedies, but it remanded with instructions to

allow amendment to permit the prosecution of any claims that

*The Anzona death penalty statute was subsequently revised to cure this

defect. See Ariz. Rev. Stat. Ann. § 13-703(G), as amended by 1979 Anz.

Sess. Laws ch. 144, § 1 (effecuve May 1, 1979).

A-8

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=.

Ricumonp v. Lewis 447

had been properly exhausted.* Richmond v. Ricketts, 730 F.2d

1318 (9th Cir. 1984). Following such amendmen: the district

court again denied Richmond's petition, and this court again

reversed, remanding for a full review of the state record.

Richmond v. Ricketts, 774 F.2d 957 (9th Cir. 1985). After

reviewing the full record, the district court denied Rich-

mond’s petition for the third time in a thirty-five page opin-

ion. Richmond v. Ricketts, 640 F. Supp. 767 (1. Anz. 19846).

2069 (9th Cir. Aug. 14, 1987) (en banc) (order scheduling

oral argument for Oct. 20, 1987, in light of Ricketts v. Adam-

son. 483 US. 1 (1987)). Adamson presented a similar chal-

lenge to the constitutionality of Arizona's revised death

Cir. 1988) (en banc). Arizona petitioned the

the United States for review of that deci-

sion, and this court further deferred submission pending that

penalty é

Ct. 3047 (une 27, 1990), rehg

990). In a compamion case

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44% RicumMonp v. Liwss

decided that same day, Lewis v. Jeffers, the Court restated and

elaborated upon its Walton holding. 110 S. Ct. 3092, reh'g

denied, 111 §. Ct. 14 (1990). On the following day, the Court

denied certiorari in Adamson. Lewis vy. Adamson. 110 S. Ct.

3287 (1990), denying cert. to Adamson vy. Ricketts, 865 F.2d

1011 (9th Cir. 1988) (en banc),

In light of these developments, this court ordered the par-

ties to file supplemental briefs, and on September 27, 1990,

the court entertained a second oral argument to consider the

effects of Walton. Jeffers, and other recent Supreme Court

decisions on this uppeal. The court thereafter took the entire

appeal under submission for decision.

Il

A

The district court had proper jurisdiction under 28 U.S.C.

§ 2241. This court has proper jurisdiction under 28 U.S.C.

§ 2253. We review the denial of a habeas Corpus petition de

novo. See Weygandt v. Ducharme, 774 F.2d 1491, 1492 (91)

Cir. 1985). However, under 28 U.S.C. § 2254(d), the factual

findings of state trial and appellate courts are presumed cor-

rect if fairly supported by the record. See Sumner v. Mata, 449

U.S. 539, 546-47 (1981).

B

Richmond has presented four arguments: (1) that Arizona's

death penalty law is unconstitutional both on its face and as

applied, (2) that the trial court never specifically found that he

caused, intended to cause, or attempted to cause Crummett’s

death and that imposition of the death penalty would therefore

violate the rule of Enmund v. Florida, 458 U.S. 782 (1982),

(3) that he was improperly denied an evidentiary hearing on

his claim that Arizona’s administration of the de: *h penalty is

unconstituuionally discriminatory, and (4) that iulfillment of

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ee ee ee ee ee

RICHMOND v. Lewts 449

his sentence after so many years on death row would consti-

tute cruel and unusual punishment. Respondent Arizona has

challenged all four contentions and has further argued that

Richmond's petition constitutes an abuse of the wnt. We

address the state's latter contention first and then address

Richmond's arguments sequentially.

Il

In its 1978 judgment on Richmond's first petition for

habeas relief, the district court vacated Richmond's sentence

but affirmed his conviction. The State of Arizo»« argues that

because Richmond failed to appeal the affirmance of his con-

viction at that time, it is abuse of the writ to challenge the

conviction now. See 28 U.S.C. § 2244(b); Rules Governing

Section 2254 Cases, Rule 9(b). A prior panel of this court has

already addressed this contention. See Richmond, 774 F.2d at

959-61. We are bound to adopt its conclusions as the law of

the case. See Handi Inv. Co. v. Mobil Oil Corp., 653 F.2d 391,

392 (9th Cir. 1981), see also 1B J. Moore, J. Lucas & T. Cur-

ner, Moore's Federal Practice § 0.404[1], at 119 (2d ed.

1988) (“If there is an appeal from the judgment entered afier

remand, the decision on the first appeal establishes the law of

the case to be followed on the second.”).

(1] Thus, to the extent that Richmond seeks to challenge his

conviction on grounds that were available to him when he

filed his first petition, we agree that he is barred from doing

sO now:

The relief obtained on the first petition went only

to the sentence. The incentive remained, therefore.

for Richmond to appeal the rejection of.his chal-

lenges to the underlying conviction, since if he were

to prevail on appeal on these claims, he could not be

resentenced. The district court could properly

decline to reconsider these underlying-conviction

claims when raised in a second petition.

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450 Ricumonp v. Lewis

Richmond, 774 F.2d at 960 (emphasis in original). Whether

termed abuse of the writ or res judicata, the reassertion of

such claims is not permissible at this Stage.

[2] Richmond, however. has focused his attention in the

Current appeal on challenging the re-imposition of his sen-

tence. This he certainly may do, and in so doing, he may chal-

lenge the death penalty on grounds that were available to him

but that he did not raise when contesting his first sentence:

Previously unadjudicated claims must be decided on

the merits unless the petitioner has made a conscious

decision deliberately to withhold them. is pursuing

“needless piecemeal litigation,” or has raised the

claims only to “vex, harass, or delay.” None of these

three situations applies to Richmond's petition.

Id. at 961 (citing Sanders v. United States, 373 U.S. 1, 18

(1963)). Richmond may also renew challenges to the death

penalty that were raised in his first petition and decided

against him by the district court:

{W)hen the district coun enjoined Richmond's [ini-

tial] death sentence, it relied solely on the [original]

Arizona statute's failure to consider mitigating fac-

tors of an individual's character. Richmond v. Card-

well, 450 F. Supp. at 526. Because Richmond had

obtained the sentencing relief he sought, he had no

incentive to appeal the adverse determination of his

other grounds for challenging the death sentence.

and perhaps would not have been permitted to do so

on mootness or ripeness grounds. The ends of justice

would not be served by denying Richmond appellate

consideration of these other constitutional challenges

to ‘the death penalty merely because he obtained

relief on a different ground.

A-12

RicuMonp v. Lewis 451

Id. at 960, With respect to any of the protfered challenges to

his sentence, therefore, “Richmond's petition does not consti-

tute an abuse of the writ.” /d. at 961.

IV

A

At the time of Richmond's conviction in 1974, Arizona law

defined first-degree murder in relevant part as follows: “A

murder which is perpetrated by ... any ... kind of wilful,

deliberate and premeditated killing, or which is committed . . .

in the perpetration of, or attempt to perpetrate ... robbery ...

is murder of the first degree.” Ariz. Rev. Stat. Ann. § 13-452

(repealed 1978) (current version at § 13-1105). For those con-

victed of first-degree murder, the Arizona code provides a

sentencing hearing independent of the tal. § 13-703(B).

Here, the trial judge must choose without the assistance of a

jury between the options of life imprisonment and capital

punishment. § 13-703(A)-(B). For purposes of this determina-

tion, a special verdict is required regarding the existence or

non-existence of any aggravating or mitigating factors. § 13-

703(D). The statute puts the burden of establishing the exis-

tence of any aggravating factors on the prosecution and the

burden of establishing the existence of any mitigating factors

on the defense. § 13-703(C). The statute then channels the

court's discretion:

[T]he court ... shall impose a sentence of death if

the court finds one cr more of the aggravating cur-

cumstances enumerated in subsection F of this sec-

tion and that there are no mitigating circumstances

sufficiently substantial to call for leniency.

§ 13-703(E) (emphasis added).

Subsection F enumerates ten aggravating circumstances,

including the following three:

A-|3

452 RICHMOND Vv. Lewis

(1) The defendant was previously convicted of a

felony in the United States for which under

Arizona law a sentence of life impnsonment or

death was imposable.

(2) The defendant was previously convicted of a

felony in the United States involving the use or

threat of violence on another person.

» * * *

(6) The defendant committed the offense in an

especially heinous, cruel or depraved manner.

§ 13-703(F). By the time of Richmond's resentencing in

1980. subsection G of the statute had been revised to read as

follows:

Mitigating circumstances shall be any factors prof-

fered by the defendant or the state which are relevant

in determining whether to impose a sentence less

than death, including any aspect of the defendant's

character, propensities or record and any circum-

stances of the offense, including but not limited to

{(1) the defendant's incapacity to appreciate the

wrongfulness of his conduct or to conform his con-

duct to the requirements of law, (2) the defendant's

suffering of unusual or substantial duress, (3) the

defendant's relatively minor participation in the

crime, (4) the defendant's reasonable inability to

foresee that his conduct would cause or would create

the grave risk of causing death, and (5) the defen-

dant’s age}.

§ 13-703(G).

B

Richmond challenges the constitutionality of this revised

sentencing scheme on four grounds. First, he contends that

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Ricuwonp v. Lewis 453

judicial determination of the existence or nonexistence of

aggravating circumstances impermissibly usurps the jury s

fact-finding function. Second, he claims that requiring the

defense to establish the existence of any mitigating circum-

stances illegitimately shifts the burden of proof. Third, he

argues that the Arizona statute creates an unconstitutional pre-

sumption that death is the proper sentence. Finally. he insists

that imposing the death penalty upon finding that the killing

was “especially heinous, cruel or depraved” is unconstitution-

ally vague.

[3] The Supreme Court's recent decision in Walton v. Ari-

zona specifically addressed and rejected the first three conten-

tions, and Richmond has not forcefully advanced these

arguments since.* With respect to the judicial determination of

sentencing factors, the Court stated: * ‘Any argument that the

Constitution requires that a jury impose the sentence of death

or make the findings prerequisite to imposition of such a sen-

tence has been soundly rejected by prior decisions of this

Court.” “ Walton, 110 S. Ct. at 3054 (quoting Clemons v. Mis-

sissippi, 110 S. Ct. 1441, 1446 (1990)). Indeed, even before

Walton, it was well settled that * ‘the Sixth Amendment does

not require that the specific findings authorizing the imposi-

tion of the sentence of death be made by the jury. ~ /d.

(quoting Hildwin v. Florida, 490 U.S. 638, _, 109 S. Ct. 2055,

2057 (1989)); see generally id. at 3054-55 (Part II of the opin-

ion). As the district court noted when it rejected this argument

in Richmond's first petition:

*We have already had occasion to note Walion’s reyection of the first

and third contentions. See Smith v. McCormick, 914 F.2d 1153, 1169-70

(9th Cir. 1990). We also note in passing that Richmond's able and expen-

enced counsel, Timothy K. Ford, is intimately familiar with the Walon

case. Mr. Ford -epresented Jeffrey Alan Walton in his peutvon before the

United States Supreme Court. This fact — in addition to the cases’ under-

lying similarity — may help to explain why several of the arguments

raised here are identical to arguments decided by the Court in thal case.

See infra note 7 (noung the factual sumilanues between the two cases).

Ns

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454 RicumMonp \. Lewis

“(The Supreme Court) has never suggested that jury

sentencing is constitutionally required. And it would

appear that judicial sentencing should lead, if any-

thing, to even greater consistency in the imposition

at the trial court level of capital punishment, since a

trial judge is more experienced in sentencing than a

jury, and therefore is better able to impose sentences

similar to those imposed in analogous cases.”

Richmond, 450 F. Supp. at 523 (quoting Proffitt v. Florida,

428 U.S. 242, 252 (1976)).*

(4) The Walton Court likewise rejected the contention that

requiring the defendant to establish the existence of mitigating

factors impermissibly shifts the burden of proof. Denying that

the practice violates the eighth and fourteenth amendments,

the Court ruled:

So long as a State's method of allocating the burdens

of proof does not lessen the State's burden to prove

every element of the offense charged, or in this case

to prove the existence of aggravating circumstances,

a defendant's constitutional rights are not violated by

placing on him the burden of proving mitigating cir-

cumstances sufficiently substantial to call for

leniency.

“Since the Walon decision, Richmond has apparently conceded that the

sixth amendment does not require jury factfinding at the sentencing phase

in Capital punishment cases, but he has stressed the alternative argument

that the equal protecuon clause does require jury factfinding at sentencing.

Because Anzona law provides for jury factfinding in many similar circum-

stances, Richmond contends, it is arbitrary and wrational not to provide for

it here. We find this argument unpersuasive. As the Supreme Court noted

in Proffitt, there is indeed a rational reason for conunituing the factfinding

function to the judge at the sentencing phase in capital punishment cascs,

and it probably promotes more evenhanded justice to do so. See Proffitt,

428 U.S. at 252. Moreover, the Court's sixth amendment holding on this

issue in Walion would make litue sense if the broader, less specific terms

of the equal protecuon clause could be read to require the opposite result.

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Ricumonp v. Lrwis 455

Walton, 110 S. Ct. at 3055; see generally id. at 3055-56 (Part

III of the opinion).

[5] Finally, the Walton Court also rejected the claim that

the Arizona statute creates an impermissible presumption that

death is the proper sentence for first-degree murder. Like

Richmond, Walton had challenged the statute's directive that

a court “shall impose a sentence of death” if it finds one or

more aggravating circumstances and no substantial Mitigating

circumstances. Ariz. Rev. Stat. Ann. § 13-703(E) (emphasis

added). Walton had contended, as Richmond does here, that

this provision violates the proscription against mand: ory

death sentences announced in Woodson v. North Carolina,

428 U.S. 280 (1976). The Court disagreed, citing its recent

decisions in Blystone v. Pennsylvania, 110 S. Ct. 1078 ( 1990),

and Boyde v. California, 110 S. Ct. 1190, reh'g denied, 110

S. Ct. 1961 (1990), both of which had upheld similarly

worded capital punishment laws. The Court ruled that so long

as the statute provides individualized sentencing and does not

automatically impose death for certain categones of murder,

it passes constitutional muster under Woodson. See generally

Walton, 110 S. Ct. at 3056 (Part IV of the Opinion).

In short, the Supreme Court has specifically rejected three

of the constitutional arguments raised here, and it has done so

in the context of reviewing the very same statute.

Cc

Richmond insists, however, that his fourth constitutional

challenge to the statute survives Walton. Indeed, he contends

that Walton itself renders his death sentence unconstitutional

and that this court's en banc decision in Adamson v. Ricketts

mandates resentencing. See Adamson, 865 F.2d 1011 (9th Cir.

1988) (en banc), cert. denied sub nom. Lewis v. Adamson, 110

S. Ct. 3287 (1990). We are not persuaded.

A-19

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456 RichmMonp v. Lewis

In Walton, another Arizona inmate who was convicted of

first-degree murder and sentenced to death challenged his sen-

tence On constitutional grounds.’ The Supreme Court denied

all four of his claims and affirmed the sentence. Despite this

result, Richmond contends that Walton's fourth claim and the

Court's disposition of that claim bolster his petition."

"The facts of the Walion case are strikingly sumular in many respects to

the facts of the present case. Walton, who also acted with the assistance

of two fnends, “went to a bar in Tucson, Arizona, .. . intending to find

aud rob someone at random, steal his car, ue him up, and leave hum in the

desert. ... In the bar's parking lot, the tno encountered Thomas Powell,

4 young, off-duty Manne.” 110 S. Ct. at 3052. Forcing Powell to accom-

pany them, the three commandeered his car and drove to a remote area on

the outskirts of town. When they stopped, they

forced Powell out of the car and had hum lic face down on the

ground near the car while they debated what to do with hum... .

Walton then took a .22 caliber dermnger and marched Powell off

imto the desert. After walking a shorn distance, Walton forced

Powell to lic down on the ground, placed his foot on Powei: s

neck, and shot Powell once in the head. Walton later told [his two

accompanying fnends) that he had shot Powell and that be had

“never seen a man pee in his pants before.”

/d. Despite the similanties, the circumstances of Powell's death were

somewhat more grucsome than those of Crummett's:

Powell's body was found approximately a week later .... A

medical exammuner determined that Powell had been blinded and

rendered unconscious by the shot but was not unmediately killed.

Instead, Powell regaincd consciousness, apparently floundered

about in the desert, and ulumately died from dehydrauon, starva-

uon. and poeumonia approxumately a day be.ure bis body was

found.

Id.

*Walton’s first three claums. which were also raised by Richmond, were

the three claims discussed in Part 1V-B above. First, Walton alleged that

“every finding of fact underlying the sentencing decision must be made by

a jury, not by a judge.” 110 S. Ct. at 3054; compare Ariz. Rev. Stat. Ann.

§ 13-703(R). Second, he alleged that the Anzona statute upconsutuuonally

“unposes oo defendants the burden of establishing, by a preponderance of

the evidence, the existence of mitigating circumstances.” 110 S. Ct. at

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RickMonp v. Lewis 457

In his fourth claim, Walton alleged that the aggravating cir-

cumstance found and relied upon by the sentencing judge —

his commission of the crime “in an especially heinous, crue!

or depraved manner” — was unconstitutionally vague. Anz.

Rev. Stat. Ann. § 13-703(F)(6); see 110 S. Ct. at 3056-57.

The Supreme Court agreed that the relevant statutory provi-

sion was vague but did not agree that it was unconstitutional.

In essence, the Court held that facial vagueness alone does not

decide the question: one must look beyond the language of the

suspect provision and consider the full circumstances attend-

ing its application. Safeguards built into the sentencing

scheme through other provisions — and even extra-statutory

procedural safeguards — may preserve the scheme’s constitu-

tional integrity. See generally Walton, 110 S. Ct. at 3056-58

(Part V of the opinion).

The Court found three such safeguards within Arizona law.

First, the Arizona scheme provides for sentencing by a judge,

not by a jury. That fact alone distinguished Walton from

Maynard v. Cartwright, 486 U.S. 356 (1988), and Godfrey +.

Georgia, 446 U.S. 420 (1980), two cases relied upon by Wal-

ton in which the Supreme Court had invalidated death sen-

tences due to similarly vague statutory definitions of

aggravating circumstances. Where a judge makes the sentenc-

ing findings there is less danger of impermissibly broad appli-

cations of statutory terms: “Trial judges are presumed to

know the law and to apply it [correctly] in making their

decisions.” Walton, 110 S. Ct. 3057.

Second, the Court found, the Arizona Supreme Coun had

effectively salvaged the suspect provision by affording it a

3055; compare Anz. Rev. Stat Ann. § 13-703(C). Third, be alleged that

the Anzona statute “creates ap upconsutuuonal presumpuon thal death 1s

the proper sentence” because it requires the death penalty “if one or more

aggravating circumstances are found and muugauog circumstances are

held insufficient to call for leniency.” 110 S. Ct. at 3056; compare Anz.

Rev. Stat. Ann. § 13-703(E). The Supreme Court rejected all three of these

claums as well as the fourth, which 1s discussed herew.

A-14

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458

Richmonp v. Lewts

“limiting definition” in the course of reviewing the trial

judge's sentencing decision. What the state legislature had

improvidently left out, the state supreme court properly

inserted:

The Arizona Supreme Court stated that “a crime is

committed in an especially cruel manner when the

perpetrator inflicts mental anguish or physical abuse

before the victim's death,” and that “[mJental

anguish includes a victim's uncertainty as to his ulti-

mate fate.” ...

Recognizing that the proper degree of definition of

an aggravating factor is not susceptible of mathemat-

ical precision, we conclude that the definition given

to the “especially cruel” provision by the Arizona

Supreme Court is constitutionally sufficient because

it gives meaningful guidance to the sentencer.

Id. at 3057-58 (quoting State v. Walton, 159 Ariz. 571, 586.

769 P.2d 1017, 1032 (1989)) (emphasis added). By injecting

this limiting definition into a sentencing process already

restricted to judges, Arizona provided ample protection for

Walton's constitutional rights.

If the Arizona Supreme Court has narrowed the defi-

nition of the “especially heinous, cruel or depraved”

aggravating circumstance, we presume that Arizona

trial judges are applying the narrower definition. It is

irrelevant tnat the statute itself may not narrow the

construction of the factor.

Id. at 3057 (emphasis added).

Third, the Court reasoned:

A-35

eee

tet elis hie ak Be Po) ee ee |

—

———o— oe

RICHMOND v. Lewis 459

[E]ven if a trial judge fails to apply the narrowing

construction or applies an improper construction, the

Constitution does not necessarily require that a state

appellate court vacate a death sentence based on that

factor. Rather, as we held in Clemons v. Mississippi,

494 U.S. _, 110 S. Ct. 1441, 108 L. Ed. 2d 725

(1990), a state appellate court may itself determine

whether the evidence supports the existence of the

aggravating circumstance as properly defined or the

court may eliminate consideration of the factor alto-

gether and determine whether any remaining aggra-

vating circumstances are sufficient to warrant the

death penalty.

Id.

In his reliance on Walton, Richmond points Out as an initial

matter that the same aggravating circumstance at issue in that

case was cited by the Arizona Supreme Coun in its review of

his death sentence. Richmond insists that the terms of this

aggravating circumstance — “especially heinous, cruel or

depraved” — are facially vague. He is undeniably correct;

Walton held so explicitly. Richmond then argues, however,

that whereas the Arizona Supreme Court cured this potential

defect in Walton, it failed to do so in his case. The court. he

maintains, applied no comparable “limiting construction” in

| its review of his sentence. This contention is empirically

incorrect.

[6] In reviewing Richmond's sentence, the Arizona

Supreme Court quite clearly did provide a limiting construc-

tion for the admittedly vague aggravating circumstance. In

fact, if anything, the state court provided a more narrowly tai-

lored and more obviously sufficient limiting construction in

Richmond's case than it did in Walton's:

“Cruel” has been defined as “disposed to inflict pain

especially in a wanton, insensate or vindictive man-

A-aJ

460 RICHMOND v. Lewts

ee ee ee ee ee eee eee

ner: sadistic.” Strate vy. Knapp, 114 Ariz. 531, 543.

562 P.2d 704 ( 1977), cert. denied, 435 US. 908, 98

S. Ct. 1458, 55 L.Ed. 24 S00 (1978). Cruelty

involves the victim's pain or suffering before death.

State v. Gretzler, {135 Ariz 42, 659 P.2d 1 (1983));

State v. Poland, 132 Ariz. 269, 645 P.2d 784 (1982):

State v. Lujan, 124 Ariz. 365, 604 P.2d 629 (1979).

The offense must be committed in an especially

cruel, heinous or depraved manner to be considered

an aggravating circumstance. State y. Lujan,

Supra. ...

“Heinous” has been defined as “hatefully or

shockingly evil: grossly bad,” and “depraved” is

“marked by debasement, COrrup:ion, perversion or

deterioration.” State v. Knapp, supra. Heinous and

depraved involve the mental State and attitude of the

offender as reflected in his words and actions. State

v. Gretzler, supra; State vy. Poland, supra; State v.

Lujan, supra. In Gretzler. Supra, we discussed fac-

tors which lead to a finding of heinousness or

depravity. One factor is the infliction of gratuitous

violence on the victim; another related factor is the

needless mutilation of the victim. Here the victim

was already unconscious and bleeding when he was

Tun Over not once, but twice, each time from a differ-

ent direction. The evidence indicates that the first

run by the vehicle was over the victim's head crush-

ing his skull and killing him. The second run of the

vehicle was over the body of the victim. The investi-

gating officers found, at the location of the murder,

two large pools of blood separated by about 30 feet,

which was consistent with the body having been run

over and dragged to where it was found... .

... We believe the facts of this case set it “apart

from the normal first degree murders.” State y.

Brookover, 124 Ariz. 38, 601 P.2d 1322 (1979).

A-32

' oe eee as)

—ee oie nom eM Fe

Ricimonp v. Lewis 461

Richmond, 136 Ariz. 312, 319, 666 P.2d 57. 64 (plurality

Opinion) (finding Crummett's killing especially heinous and

Jepraved but not especially cruel);* compare id. with Walton.

159 Ariz. at 586-88, 769 P.2d at 1032-34.

[7] As in Walton, the sentence in this case was (a) imposed

by a trial judge presumably knowledgeable in the law, (b)

thoroughly and independently reviewed by the Arizona

Supreme Court, and (c) reimposed under a sufficiently limit-

ing construction.” Under a fair reading of Walton and the

record alone, therefore, Richmond's contentions must fail.

[8] Richmond attempts to avoid this conclusion by chal-

lenging the legal accuracy of the Arizona Supreme Court's

limiting construction. He cites several state court decisions.

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

*Richmond argues that only two of the five Justices of the Anzona

Supreme Court concurred in this poruon of the court's opinion. He is cor-

rect. Two other Jusuces voted to affirm the sentence but on other grounds.

They explicitly reyected the argument that the killing had been especially

hemous and depraved. See Richmond, 136 Ariz. 322-24, 666 P.2d at 67-69

(Cameron, J., concurring and Gordon, V.CJ., joining). The fifth Justice

dissented altogether. See 136 Ariz. 324-26, 666 P.2d at 69-71 (Feldman.

J., dissenung). The fact that a majonty of the court did pot concur in this

finding, however, does not deny that the Justices who did concur in it pro-

More umportantly, Rachmond’s observauon is urelevant in ght of the

fact that four Jusuces concurred m the finding of two other aggravaung

curcumstances, either one of which could consututonally have justified

unposition of the death penalty. See infra Part IV-D.

"See Richmond, 136 Ariz. at 317, 666 P.2d at 62 (“{IJn each case where

the death penalty is umposed, this court conducts an independent review

of the record to assure a just result. We have reviewed the record in the

imstant case .. .”); 136 Anz. at 320, 666 P.2d at 65 (“In death penalty

Cases, this court will conduct an dependent examunation of the record to

determune for ourselves the presence or absence of aggravating and muu-

gang curcumstances and the weight to give to each. We also indepen-

dently determune the propnety of the sentence.”).

A-a3

7m em 6

.

462 Ricumonn v. Lewis

ail

the Ari

oe a Supreme Court on matters of Arizona law; in that

» the authority of the state court remains supreme

Both Walton and its compani

panion case, Lewis v. J ers, 110

S. Ct. 3092 ( 1990), support this analysis. As Wainee pointed

language of the Arizona s

4 u tatute per se or even upo -

pte rey of the state trial judge; rather > prage

tutional legitimacy of Richmond's

sentence as that sen-

tence stands today after review by and exhaustion of the state

Court process, See Walton, 110 S. Ct. at 3057-58. The only

Jeffers thoroughly reinforces th

e Walton rule. In Je ers, th

ype bong : — and reapplied the Walton riains .

ona prisoner's challenge to the le itim

pe oo death sentence. Because Jeffers was before the esos

a epson are 7 Court concluded that even greater defer-

( © the state system than the Co rt had

in Walton, which it had heard on di iow. The Com

n direct review. The C

never reached the merits of Jeffers’ s itutic —

neve: S constitutional claims.

it —— never approached any questions of sate to

er, the Court reached its decision upon formulation of the

[Respect for a State court's findings of fact and

application of its own law counsels against the sort

A-2yp

ee

“9

RiciMonD v. Lewis 463

of de novo review undertaken by the Coun of

Appeals in this case.... Where the issue is solely

whether a state court has properly found existence of

a constitutionally narrowed aggravating circum-

stance, we have never required federal courts “to

peer majestically over the [state] court's shoulder so

that [they] might second-guess its interpretation of

facts that quite reasonably — perhaps even quite

plainly — fit within the statutory language.” . . .

Rather, in determining whether a state court's

application of its constitutionally adequate aggravat-

ing circumstance was sO erroneous as to raise an

independent due process or Eighth Amendment vio-

lation, we think the more appropriate standard of

review is the “rational factfinder” standard estab-

lished in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). We held in Jackson

that where a federal habeas corpus claimant alleges

that his state conviction is unsupported by the evi-

dence, federal courts must determine ... “whether,

after viewing the evidence in the light most favor-

able to the prosecution, any rational trier of fact

could have found the essential elements of the crime

beyond a reasonable doubt.” ,;

Jeffers, 110 S. Ct. at 3102-03 (quoting Godfrey v. Georgia,

446 U.S. 420, 450 (1980) (White, J., dissenting) and Jackson

v. Virginia, 443 U.S. 307, 319, reh'g denied, 444 U.S. 890

(1979)) (emphasis in original).

In short, this court's focus must not be on the underlying

sentence but on whether the state system in both imposing and

reviewing that sentence committed an _ independent

constitutional violation. To vacate Richmond's sentence, this

court would have to find that there is no rational basis in law

or fact for the state supreme court's final evaluation that the

circumstances warrant the sentence of death:

A-as

lee ee ee

-—<—-«

toh

464 Ricumonn vy. Lewis

[A] federal court should adhere to the Jackson

Standard even when reviewing the decision of a State

the state Court's application of those circumstances

raises, apart from due Process and eighth amendment

Offense “IS especially heinous . -. Or depraved” — js

arbitrary or Capricious if and only if no reasonable

sentencer could have so concluded.

Id. at 3103 ‘emphasis added).

We therefore reject Richmond's invitation to “conduct{ } a

de novo, Case-by-case comparison of the facts” of various

above, however, his contentions would stil] lack merit. The

Arizona Supreme Court rested its affirmance of his sentence

a ee

SST OU eee es co unee , O k e ad (MALE. 2: eR omens Oe eee tee nt ee ea ee

we: ee aie sae ©

emt em ere:

RICHMOND v. Lewis 465

66. The second aggravating factor relied upon was Rich-

mond’s conviction for another murder six months after his

initial conviction. Although this latter conviction postdated

Richmond's first, “[iJt is not disputed that the killing that was

the basis of th{at] conviction occurred prior to the murder of

Bernard Crummett.” Richmond, 640 F. Supp. at 780; see

supra note 1. In any event, both convictions were duly on

record by the time of Richmond's resentencing in 1980.

Furthermore, although the state Supreme court explicitly

found and addressed Only these two aggravating circum-

stances, it held that “[t}he trial court correctly found three

aggravating circumstances.” Richmond, 136 Ariz. at 320, 666

P.2d at 65. The third was an entirely separate prior conviction

for kidnapping — Statutorily relevant for death penalty pur-

poses as an offense “involving the use or threat of violence on

another person.” Ariz. Rev. Stat. Ann. § 13-703(F)(2)." Ari-

zona law explicitly provides that a single aggravating circum-

stance may suffice for imposition of the death penalty. See

§ 13-703(E).

Richmond does not contend, nor could he reasonably, that

the statutory definitions of these two other factors are uncon-

"The court also hinted at the possible applicability of a fourth aggray at-

ing circumstance: the defendant's commission of the crime 10 €xpectauon

of pecumary gain. See Anz. Rev. Stat. Ann. § 13-703(F 5); Richmond,

136 Anz. at 320, 666 P.2d at 65. Althougtr noung that the mal court bad

unproperly analyzed this factor in reaching the conclusion that it did pot

apply. the Anzona Supreme Court declined to determine whether uoder a

Proper analysis i would apply -

Anzona Supreme Court's majority opinion does not address it except to

express general agreement with the mal court's reliance upoo it. The cop-

currence, which was endorsed by two Justices. is somewhat more explicit

in its embrace of the lower court's reliance on both the pnor murder cop-

vicuon and the pn kidnapping conviction. See Richmond. 136 Anz at

323-24, 666 P.2d at 68-69 (Cameron, J., concurnag and Gordon, V.CJ.,

jouning).

K-49

eo

te ee ee oe

Pe ee

466 Ricimonn v. Lewis

Stitutionally vague. See § 13-703(F)(1)-(2), Rather, he side-

Steps consideration of these additional factors by citing this

Circuit's en banc decision in Adamson y. Ricketts for the prop-

osition that invalidation of any one aggravating circumstance

requires resentencing. See 865 F.2d at 1037 n.42, 1038, 1039.

Richmond refers is nvr invalid, but assuming for the sake of

argument that it is, Richmond's reliance on Adamson is not

The Supreme Court granted certiorari jin Walton

specifically because of this circuit's en banc holding in

Adamson," and Walton reached the opposite conclusion

regarding the Arizona Statute's constitutionality. Even if the

mon practice of the Arizona Supreme Court to remand for

resentencing when that court invalidates an aggravating cir-

Cumstance. /d. There is no Suggestion in Adamson that the

United States Constitution requires remand when one aggra-

vating factor is eliminated from the analysis if sufficient other

aggravating factors remain.

The Supreme Court's recent decision in Clemons v. Missis-

sippi, 110 S. Ct. 144] (1990), upon which Richmond also

Appeals for the Ninth Curcuit has held the Anzona death Penalty statute

to be unconstitutional for the reasons submitted by Walton in this Case, see

ceruoran.”): id. at 3059 (Scalia, J., concurring) (describing Adamson and

Walion as “essenually identical” Cases).

ho’

"GPG «ase soa

’ MOPED ADs St ena ee Fs airs

RICHMOND y. Lewis 467

“especially heinous, atrocious or cruel” killing. /d. at 1445,

he Mississippi law in question permitted imposition of the

death Penalty upon a finding of only one aggravating circum-

stance so long as that aggravating circumstance Outweighed

all Mitigating circumstances, Finding the state supreme

court's consideration of the “especially heinous” factor imper-

missibly vague, the Supreme Court remanded for resentenc-

ing.

Rather, it implicitly recognized that reliance On a single

‘eeravating factor cun be constitutional. See id. at 1446,

circumstance stil] Outweighed all the mitigating evidence. See

id. at 1449-5] (Parts TII-IV of the Opinion).

(11) In this case. there is no similar doubt. Elimination of

the challenged factor would still leave enough support for

penalty “if the court finds one or more of the [enumerated]

aggravating circumstances . _. and that there are no mitigating

circumstances sufficiently substantial to cal/ for leniency.”

——-, es ste

ee

ae et ere oe

—eotrth

468 RICHMOND Vv. Lewis

resentencing where the court has found that the Prosecution

has met its burden of establishing aggravation Sufficient to

warrant the state's harshest penalty nvo or three times and that

the defense has failed to establish mitigating circumstances

sufficiently substantial to call for leniency. See id. §§ 13-

relative sense; the same, however, cannot be said under the

terms of the Arizona statute at issue here. Nothing in the Ari-

merated] aggravating circumstances ... and that there are no

mitigating circumstances sufficiently substantial to call for

leniency.” Jd. § 13-703(E),

Richmond next contends that because the trial court never

Specifically found that he Caused, intended to Cause, or

imposition of the death penalty violates the eighth and four-

teenth amendments in the absence of a specific finding by the

ter of fact that the defendant actually killed, attempted to

kill, intended to kill, or contemplated that life would be taken.

Enmund himself did not kill Or attempt to kill; and,

as construed by the Florida Supreme Cour, the

record before us does not warrant a finding that

Enmund had any intention of Participating in or

facilitating a murder. Yet under Florida law death

was an authorized penalty because Enmund aided

A-30

oo 2 ace

Se

ee ot ee ee ees

RicmMonnp v. Lewis 469

and abetted a robbery in the course of which murder

was committed.

Id. at 798; see id. at 801.

Enmund, however, is Clearly distinguishable from the pres-

ent Cuse. The jury that convicted Richmond received instruc-

tions on both premeditated and felony murder, and t! > record

before us clearly provides sufficient evidence for a finding

that Richmond expressly intended to participate in and to

facilitate that murder. Moreover, the Sup:*me Court's holding

in Enmund was predicated upon the attenuated nature of the

defendant's responsibility for the deaths in that case. As the

Supreme Court pointed out more recently in Tison v. Arizona.

481 U.S. 137, reh'g denied, 482 U.S. 92} (1987), Enmund

does not stand for the blanket Proposition that capital punish-

ment is unconstitutional in cases of felony murder:

[SJome noninten:ional murderers may be among the

most dangerous and inhumane of .!] — the person

who tortures another not Caring whether the victim

lives or dies, or the robber who shoots someone in

the course of the roobery, utterly indifferent to the

fact that the desire to rob may have the unintended

consequence of killing the victim as well as taking

the victim's property. This reckless indifference to

the value of human life may be every bit as shocking

to the moral sense as an “intent to kill.” ... [W]e

hold that the reckless disregard for human life

implicit in knowingly engaging in criminal activities

known to carry a grave risk of death represents a

highly culpable mental state, a mental state that may

be taken into account in making a capital sentencing

judgment when that conduct causes its natural,

though also not inevitable, lethal result.

A-3 |

—_-

470 Ricimonp v. Lewis

live, could identify him. Appellant, from his version

of the facts, was willing to leave the wounded and

Cause the victim's death.

oe

ww ee

;

> Ot: ht an > sh ee

RICHMOND vy. Lewis 471

nes

Richmond, 136 Ariz. at 318, 666 P.2d at 63."

won. .

.. + [W)hen a federal habeas court reviews a claim

that the death penalty has been imposed on one who

has neither killed, attemp d to kill, nor intended that

a4 killing take place or lethal force be used, the

Court's inquiry cannot be limited to an examination

of jury instructions. Rather, the coun Must examire

Cabana y. Bullock, 474 U.S. 376, 386-87 ( 1986) (footnote

omitted). Accordingly, we conclude that the Anzona courts

have predicated Richmond's sentence upon a sufficient find-

ing of criminal intent.

2. Rt ew

é y &-. a. —> =

= e

eS

emma

‘214

‘s ‘ be ‘S

' +. +

. “1 4

>.

Rictiionn vy. Lewis 473

472 RICHMOND Vv. Lewis

an evidentiary hearing upon his claim that Arizona's adminis-

tration of the death penalty is racially, sexually, and socio-

economically discriminatory. We disagree. A habeas corpus

petitioner is entitled to an evidentiary hearing both if he

“allege, facts which. if proved, would entitle him to relief

and if he did not receive a full and fair evidentiary hearing on

the issue in the state court. Townsend v. Sain, 372 U.S. 293,

312 (1963); see id. at 312-19. The facts that Richmond has

~——<—. <~ ... ee ee

Protection clause. Richmond “must Prove that the decision-

makers in his case acted with discriminatory Purpose.”

McKleskey, 48} U.S. at 292 (emphasis in Original). Richmond

has alleged no facts to Sugyest that either the Arizona

Supreme Court, the state trial Court, or the prosecutor's Office

acted with Prejudicial or discriminatory Purpose in either

seeking or IMPosing his sentence. The district court thus prop-

erly denied his request for an evidentiary hearing on this

In support of his request for a hearing on this issue in the . issue. See generally id. at 292.320,

district court, Richmond made an extensive proffer of what he

seeks to prove: VII

{14} Richmond's final contention is that fulfillment of his

sentence after sixteen years on death row would constitute

Cruel and unusual! Punishment in Violation of the eighth and

fourteenth amendments.“ We know of NO decision by either

approximately 10% of the persons convicted of , the United Sites Supreme Coun or this circuit that has held

homicide in Arizona since 1973 have been women,

no women are on death row. All three experts who

had examined the Arizona death sentencing Process

from 1973 to the Present (March 1987] found signifi-

On the other hand, the State of Arizona has directed the

COUIT’s attention to two relevant, though not controlling, pre-

cedents. In a decision affirmed two years later by the Tenth

, Circuit, the United States District Coun for the District of

Brief for Appellant at 38-39 (citations omitted). This prof-

séred evidence, however, is precisely the sort of generannry

istical evid that was rejected as unactionable by the thirteen years on death row would Constitute Cruel and Punish

Seam Court in McKleskey vy. Kemp, 481 US. 279, reh'g ment. Because he raised that claun in his opening brief, which was filed

denied, 482 U.S. 920 (1987). Even if proven, the statistical m 1987 we have added the past three years we deferred sub-

Suppor an aierich Richmond points would be insufficient t

474 Ricumonn v. Lewis

Utah rejected a similar claim brought by a habeas COrpus peti-

tioner who had been on death row for ten years. Andrews v.

Shulsen, 600 F. Supp. 408, 431 (D. Utah 1984), aff'd, 802

F.2d 1256 (10th Cir. 1986), cert. denied. 485 U.S. 919. reh'g

denied, 485 U.S. 1015 (1988). The court reasoned that to

accept the petitioner's argument would be “a mockery of

justice” given that the delay was attributable more to the peti-

tioner’s actions than to the State's. Jd. Like Richmond. the

petitioner in Andrews had Sought “extensive and repeated

review of [his] death sentence.” Id. Arizona also points to the

well-known decision of the California Supreme Court in

People v. Chessman. in which that court rejected the same

claim by an eleven-year death-row inmate. 52 Cal. 2d 467,

341 P.2d 679, 699 (1959). cert. denied. %} U.S. 925, reh'g

denied, 36) U.S. 94) (1960). Finally, we note the decision of

the United States Supreme Court in Harrison y. United States,

392 U.S. 219, 221 n.4 (1968), which the district court cited in

its rejection of this claim and which held that an eight-year

delay between an arrest and sentencing was not unconstity-

tional where the delay resulted from the need to assure careful

review of an unusually complex case. See Richmond, 640) F.

Supp. at 803 (citing Harrison).

ultimately unsuccessful Pursuit of those rights. It would

indeed be a mockery of justice if the delay incurred during the

Prosecution of claims that fail on the merits could itself accrue

into a substantive claim to the very relief that had been sought

and properly denied in the first place. If that were the law.

death-row inmates would be able to avoid their sentences sim-

ply by delaying proceedings beyond some threshold amoun

of time, while other death-row inmates — less successful in

their attempts to delay — would be forced to face their sen-

tences. Such differential treatment would be far more

“arbitrary and unfair” and “crue! and unusual” than the cur-

A-3 (,

RicumMonp v. Lewis 475

———

rent system of fulfilling sentences when the last in the line of

appeals fails on the merits. We thus decline to recognize

Richmond's lengthy incarceration on death row during the

pendency of his appeals as substantively and independently

violative of the Constitution.

Vill

For the foregoing reasons, we affirm the judgment of the

district Court and deny Richmond's petition for a writ of

habeas corpus.

AFFIRMED.

33

34

mms COunry “rt oeney

ewer’ -ereeewne’ s+.

sawree

=e 68] 6 eer en mee

) © Gewengee ereeer

TWeGem «m1 Ome O80)

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—_e1e

APPENDIX B

STATE OF ARIZONA )

) 88. AFFIDAVIT

County of Pima )

James M. Howard, being first duly sworn upon Ais sath

deposes and says:

That he is the deputy county attorney assigned “=o the

case of State of Arizona v. Willie Lee Richmond, A-24252. That

he prosecuted the case at trial. That during she course of the

State's case at trial he talked with Rebecca Corrella in Tucson on

several occasions. That she became angry wich the state's repre-

sentatives and professed her love for Mr. Richmond, shreatenec 0

take the stand for the defense and sake she Slame for he murder.

That your affiant then scersonally informed Mr. Edward 3cldiag

during the State's case in chief that Rebecca <corrella was at

chat time, “willing to take the rap.” for Willie Richmond. That

thereafter during the trial your affiant saw Mr. 30lding speakiag

with Rebecca Corrella and enter 4 small private office at che

Courthouse with her. That desvcite her availability and apparent

Willingness to testify for the defense she was never called Sy the

defense. .

Your affianet further states upon information and Selies

that the State sf California as she Jniform Act =o Secure <=he

Attendance of Witnesses ‘rom Withov= <nhe State ia Criminal ?roceed-

ings and that Rebecca Corrella would Se availad.e 10w ‘for service

f a subpoena under that Act.

Purther affiant sayeth not.

= a

a v\ yet! LA

SAMES 4. HCwARD =

_—

/

Subscribed and sworn to before me =his 7T jay sf

—_

November 1974. )

My commission expires:

‘te =p’ on Dovires Jan. SB 1978

B- oe

, 1; STATE OF ARIZONA )

| ie ) $s. AFFIDAVIT

2} County of Pima ) ee

i

‘

: 4, deposes and says:

| s| That che attached transcript marked “Exhnibic ILA” is a

. ¢| true and accurate transcript of a tape recorded interview which

!

|

j

|

|

Morris Reyna, being firsc duly sworn upon his oath, |

|

|

7: your affianc nad with Daniel McKinney at the Arizona State Prison

|

8. om che 6th day of November, 1974. |

9 That the attached transcript marked “Exhibic IIB" is a

10. true and accurate transcripc of the original formal statemenc by

ll Rebecca Corella made to police concerning che death of Bernard

12 «=Crummic.

13 Thac affianc calked personally with Rebecca Corellia ia

14 Les Angeles, California on che 2nd day of November, 1974. That

15. she adheres to her original statemenc and disclaims any contrary

16 statements. That she was seen personally 5by this officer who «nows

17 ther and that she is available for service of a subpoena.

18 Your affiane further states that he saw Rebecca Corella

19 in Tucson om numerous occasions during che trial of Willie Lee

20 Richmond in A-26252 and saw her om at least ome occasion, during

21 chac trial in the Court House, in che company of Edward Bolding,

22 =ESq.

23 Further affianc sayech noc.

24

25

:

26. Subscribed and sworn to before ze this - day of

27 November, 1974.

: | My commission expires:

29 | te 35,1977

: V

340s “Exhibic II”

i

i

(=)

APPENDIX C

The date todav is 5 November, 1974. The time row is 1058 hours.

This is Detective Reyna and Decective Condis incerviewing Danny

McKinney at Arizona Scate Prison.

MR: May I have your full name please.

DM: Daniel Lee McKinney.

MR: And your age Danny.

DM: 20.

MR: And what's vour ASP number’

33341.

a

O.K. Damny, uh, we've had a brief conversation regarding

a statement you made about a «Killing which Rebecca Corella

and Willy Ricnmond, this is a murder in which Richmond is

presently at Arizona State Prison. The man that was «illed

is Bernard Crummec (ph). Do you know the victim's name in

this case before I told you about ic?

DM: No, I don't.

MR: O.K. Now you gave a statement regarding the death of this

man co the defense attorney in this case. Do you remember

the name, that man's name?

Uh, Willy Richmond?

No, the attorney who you spoke Co.

DM

MR

DM: werdis.

MR ahere was that statement taken?

DM

Right here in the prison.

MR: O.K. Now in that statemenc, uh, do you remember what you

told him?

DM: Uh, yes, I cold mim chac I had uh, lived with chis lady

mamed Becky Corella at 909 West Wedwick(?) and wh, she and

Il was going cogether when she gave ne a statement regarding

the murder where she told me that Willy Richmond had wenc

with her, I mean killed this dude, and she was scared you

know because they were gonna kill her, and [I cold her not

to worry about it you know, and uh, as I got arrested in the

meantime, I was threatened and told by Willy A&ichmond chac

he had friends up to the joint and when I get there, they

were going to kill me. The way it is right now I'm scill

scared because there's guys here right now that's trying to

kill me, and chere's six people in the street who seen ae,

there's three who already senc messages to where I'm at, thac

wh, I've had ic, and uh, I don't know what to do. I'm about

to lose my mind in this place you «now. I'm scared man.

MR: Did you live with Rebecca Corella after che killing?

"Exhibit ILA"

C-2

IP.

a2 8 2 8 8

a 8 &

A

a:

*

Yes I did live with her.

O.K. Did she cell you that she nad committed the homicide’

No she didn't.

Did she cell you who had?

Yes sne did.

Did she tell you how it came down?

Yes she did.

Would you cell me how ic came down, what she told you?

Willy Richmond uh, beat the dude up, and then ran over the

dude and uh, she was scared and she didn't know what to do

so she said she was going to go to the police which she did

go to che police.

Since you've been in Arizona State Prison has Willy Richmond

talked to you?

No he hasn't, but his Lawyer has.

His lawyer has. Has Richmond sent any messages to you?

Yes, ne has.

And do you remember what chose messages said?

That I've had it if I don't make a statement, “a phoney

stacemenc regerding che murder. I've had ic.

Why did he want you to gwake a phoney statemenc.

Because uh, he wanted me to get up in the courtroom and

tell a lie.

O.K. so he can get off?

So he can try to get off the hook for killing somebody thac

he «illed.

O.K. Did you get any messages from Willy Richmond while

you were ac the County Jail?

Yes I did.

Whac did those messages say’

My life is going be over with when he get nis hands on ze.

Him and Spencer Watson and quite a few other differenc

guys.

0.K. now, since you've been up here in prison, you've indicated

that am attorney by the name of Dardis. Do you remember his

irst name?

No I don't.

O.K. Me. Dardis came up and talked to you. Did he threscen

you in any way?

Well he told me either, either I'd uh, if I was caughe calking

to you guys that he was going to tell Willy and chac'd be all

over for me since, since I'm up here, excuse ne.

“2-. (2

cm a

ia

i

=~

MR O.K. How many times did vou talk to Dardis?

DM: Once.

MR Once.

DM: For about an hour.

O.K. Did you give him a statemenc at chat cime?

MR

DM: Yes I did.

MR Would you again tell me what you told him in that statemenc.

DM I told him that Becky had uh, ran over the nan, and I told

him chat uh, that she was’ the one that committed the murder

which I wasn't telling the crutch because under depression, I

mean, what can you do man, you know, what can you do. | mean,

me telling the crutch, che only reason I'm telling the truth

man because you know, I just hope man that I come out rignt:

you «now.

MR: O.K. now talk

j liccle bic louder. We're using a tape

recorder and ic

a

in fronc of you right?

DM: Righc.

MR: O.K. Now did uh, this attorney make any other threats beside

the one you jusc cold me about?

-.

=

Well che chreacs he made is all he had to say vou know, I'a

dead man.

He said chat right off che bat?

Yeah.

a

O.K. Yes or no?

Yes.

a 2

O.K. Now, in other words, what you're saying is that che

statement that you gave to Mr. Dardis is a lie and the reason

ic's a lie is because chac Willy made threats and Mr. Dardis

made threats to you?

Yes.

a 2

And did you also sign 4 statement or an affidavit’?

Yes I did.

Is chat affidavit a lie?

Yes ic is.

And why did you sign chat?

"Cause I was scared man.

And because you had been threatened?

SRS RS

That's right. Wouldn't you sign ic if you were up here

amongst ail chese wild animals man, and you know, first

thing you «now you walk out on the yard and somebody walks

around, ic'll shake you man, you «now. Paranoid aan.

as (8)

C~4

47%

a

3

a2

re:

SR aRPARAE

2.K. Now is this a true and voluntary statement given bv

you without promise of reward, threat or duress so that

the true facts may Se known in this case?’

Yes sir.

O.K. Now you've told me the complete truth as you remember

ic regarding the events leading up Co your making chat

sctactemenc’

Yes sir.

And were you told at any time that your statement would

give Willy Richmond a new trial?

Yes | was..

Who told you chat?

Mr. Dardis.

Was anybody with Mr. Dardis”

No.

Did he take a tape recorded statement?

No he did noc.

Then you didn't see a tape recorder playing?

No.

O.K. Uh, wh, have you at any time during chis interview

before indicated that you wished an attorney or that you

wished to stop talking to us?

No.

O.K. And your full name again?

Daniel Lee McKinney.

The time now is 1105.

—_— Sans

4?

“

‘?

—— — ©! — "2 ome

THES Sikh oc A "83 .463°382 " °

~~ :

AT Pirn couniy } ‘me 3 SEPT. 329 973 .i

1535 HOURS. PRESENT DET. REVUA AnD dET ‘tT

AND REBECCA CORELLA

orc tee. . = . - ’

a} oe ; 24'¢ yOu pieg@se state vour *yi seme, Our a0e, your address and your Jate

of gift’

2 TEC S- 11M ROMERD SSRELLA, | iive at 1022 S$. Stn, was born May 14, !1S52

sav *lSECCA, prior to a5<.*t amy questions. | save [0 advise you of your const! tutional

ric*ts. You Mave the ©°'s*t tS remain silent. Arything that you say can and +i de ssec

253:°9St you in @ court 2° é- You heve the right to the oresence of an ecttorney to

$55'SC you prior tO g.255 2° “2 and to be with you during questioning if you so desire.

if you canmot affora an attcrtey, you have the ight to have an attorney appointee to you

prior to questioning. 02 you understand these rights?

Yes.

Now having Sven advised of these rights and understanding these rights,

our questions?

Yes.

will you enswer

aid yOu Nove occssicn to be with VILLIE RICINOND and some other people sometime ago at

CRNCST JONES’ apartment?

Yes.

Did you tell me something today that related to the death of a person in the desert

somewhere on Greasewood?

Yes, yes, yes.

Could you in your own words go into detai! as to sow you met this person and the

circumstances surrounding the death?

| met him at the BIRD CAGE. | have known him quite a while, in fact at the BIRD CAGE.

And that night me and him were going over to the house to weit on SHEILA because he «new

me and SHEILA very well. And WILLIE happened to de around and he bul !dogged himself into

the car and called me ail kinds of momes and, anyways, this man was kind of -rieneenes

and so | made WILLIE and his girlfriend FAYE leave or go outsic¢e or something. "And oo

they ¢id and so we sat around there waiting on SHEILA and SHEILA didn't come. it was

ahout 1°30 and she didn't come. So finally | asked WILLIE if he would leave Secause the

man was scared of him and that, you know....... he wasn't wanted there. WILLIE sot upset

wiih me and the man and WILLIE hit me one time ang called me names and then he saic

was sorry and ai! of a sudden he said’t'!! take the man home." And $0, the nen was

Showing Sim where he lived and ai! of a sudden WILLIE just took sim up on A-4ouncain

anc beat him and Hit Aim with a rock and then he just ron over him with the car.

Ynat car did he ran over him with?

With @ white stationwagon.

's this the same white stationwagon that you pulled in front....or had oarked in front

of che DESERT SANDS MOTEL the evening you were arrested?

Vos.

Whot is FAYE'S last name?

| don't know her last name, a]! | know is that she's a runaway from transition some on

-

2th and Dodge.

Awi could you give me @ description of her?

“lwe's kind of short like me, she's got dishwater hair, long like mine. She's sot kind of

like bigq@es. That's about it. She looks young, she looks her age. :

Am! where is @he presently staying?

with: SERTHA GIBSON in the ®EFORMAS.

im (he 2eform area?

Y.

Ami umat is the description of the person that was taken Out in the desert and dseaten *o

al at ,? .

> we “eax'can dude and he wos mayoe §'7"’ Ne waS 9Oing to Zima College | knew Si

‘wut good, he was going to Tima Collene at the time

-

‘4 he huwe 2 Susteche or glasses or anything?

‘+ ‘oul 3 tustache. “¢

“Exhibi: II8" 8 _

fn

—— — -—

| de

fo you know if he was a veicran?

No, | doen't.

Did he Mave anv physical defects, dic xe walk 77 a limp or anything’

Oh, yes. “e said he Nad something «fomg wit 718 2g Ne said Ne Nod something wrorg

with his !ag5 and he couldp't “un t-at fast. Se sac something wrong with Sis legs, said

he got the wrt before. | think, in Sect, | thing ne said be was in the service defore.

He coulcn = walk, frum too good with tis legs because “e Nad something wrong with 51s ‘eqs.

And .cu did personally witness a!! this incident, is that correct?

“Yes

and what property was taken *rom this person?

WILLIE took his money and his «sech, | think it was his watch he took.

And what did he do with the watch and wallet?

He took everything that Se wanted out of the wallet ana the watch, | don’: know whac +e

did with that.

Were there any credit cards involved at a!! that you know of?

we, net that | know of.

And Sow much money did he get. do you reca!!?

|! think he had about $50.

And the wallet wes disposed of in what manner?

He just threw it owt the window in the desert

In the immediate proximity of where this occurred?’

Yes.

And since that time, have you had any defects with that vehicle?

What do you mean, defects?

Has anything operated or functioned differently since this incident occurred with the car?

Yes. The muffler on it is rubbing against the tire underneath, | don't know how you cal!

it, but it's rubbing ageinst something and everytime it hits a Sump or everytime sou

turn, it makes @ noise.

Did WILLIE hawe any response to you after this occurred? Did he say anything or threaten

anybody about it?

Yean. He said if anybody ever found owt about it. that the only ovo people who cou e!!

on him was me and FAY and we'd be in the same position if we did ic, did tell.

Was he driving the car that evening?

Yes.

And did you do anything im an attempt to help him or to stop him while he was commi:* 19

the robbery?

| asked him to leave him alone and WILLIE just pushed me and he Fit me once and then the

next day WILLIE made me and SHEILA and FAY go with him ower to CAT JONNSON's house where

they gamble and we made excuse to leave and we left and we went to ERNEST's howse to stay

there and | think we were there maybe an Sour before WILLIE came over. We didn't wanrc

to aswer the door but finally we answered it or he was going to creak it in. e oraqged

me off the ded and jutpec on me and he jumped on FAY and Se just, you “now, cussed SHELA

out. We did call the police but the police never did come. And ALSERT MURPHY (ph) and

ROBERT EARL (ph). | suppose you know them too, they are the two that helped se anc SHE!LA

get away from WILLIE because we had told inem to tel! WILLIE we were hiding in the Susnes.

We told them to cal! WILL'E tract if he didn't give us the car keys and get away from

EANEST's house we were going so cal! the po! ice.

What was this *s!liow thet was turdered wearing that evening?

| think he Set some Slack slacks on and 2 white shirt, |"S mot too sure

Did he ever sav where he | ived?

No,he didn't.

Did, erier to joing up there, did WILLIE mention anything about robbing Sin or did vou ever

hear VILLIE threaten that ‘se wanted is money before be Struck bin? BILLIE just Seat Sin

wo and took Fis Toney? Fa~

We were driving and ai! of a sudden VILLIE stopped in che desert and ! asked hin, wboe are

you Going and be just said, shut up, like thet. And ai! of a sudden be just Lola" es Ose

C~)

Jam

a

3 .

oie ' T

et out 9F Ihe car ang (he tee 83d, wi 6 yOu went Me Said, ct owt * c@id, i'l}

Jive ou “vw “9ney, just ‘reve 1.0%e me etl E juste started itting on ; The

Guvc nS ony syoe 24 years gic

ghen did »2 Fit Aim with the “den?

After 2 .cocaed AIT Ou

Kmockes =. down on che G7Du7s,. t9eNM he Seat Him with the rock? ow many times cid Se bis

a - the rock’

r.t =°5 times

--¢ then he took Ais zrosers.,. sid he do anything, go throwgh his pockets, or what’

foan, "e went through 4:5 socsets and got his wallet and overything and then he , told

him, you can't leave him out here like this, he mignet die. And WILLIE told me to shut uo,

thot if | said anything about it !'d Se the same way and he just ran over the man. He

becked up anc ran over him.

What did FAY say about a!! this?

Nothing.

Was she scared. or did she help WILLIE or what?

NO, she wesn't scared She thought WILLIE was a big hero.

Can you describe the location where this occurred?

No, | can't descri*e it. | could show you.

30 yOu «mow how to get there? Ok, Now gid you get there thet sight?

we went through A Mountain. Ok, do you know where the oark, the center is on A Mountain?

The A Mountain area, right

Ok, you go *urther up, a!/! the wey up and there is a dead end right in there.

OK, this is past the sew high schoo! there?

Yes.

OK, then you gO west on @ street and the street dead ends by a hi!!?

Yes

Did this man ever attempt to do anything to protect himse! f?

Yes, he tried to Fit WILLIE back.

After WILLIE hod struck him first?

well, when he got owt the car and WILLIE asked Sim for sis money, he tried to Fic WILLIE

and WILLIE just knocked him out.

WILLIE did ask him for his money first, did he do it forcefully?

"Wo, he just said, give me ai! your money, iike chat. Tilen that man was trying to out us a

fight but he couldn't secause | remember when be told me that be had something wrong «itt

his legs.

De you know how guch money “es taken?

About $50.

Did you receive any part of thet money’ Did the other gir!, FAY, receive amy part of char

money’

Whatever she did, it ai! went to WILLIE.

The only people that were present was WILL'E RICHMOND, FAY and yourse!* plus the nan?

Yes, and then | went howe and toid SHEILA about it

30 SFLILA knows about i*. did 4ILLIE ever talk to her about it?

No, | solé SHEILA about it anc | cold SHEILA noe to tel! WILLIE ! said anything.

48 anything ever dome to tne car after this occurred, was the undercarriage washed or

craeed of? nm any wey’ Did you observe any blood or Fair or anytining on the undercarriage’

“eo, | left it just the way it «as.

Nid you see any damage to the vehicle?

‘est, you wnow, like ! said, the wiffler has fallen down or something, it's making a noise

when yw lurn or hit 3 Sump, it rubs

Sr

rR

» a

rn

Aa

»e@

sua

’

Do you roca! mat day of the wevk this «a5 on?

A Sweurday, | think.

Do you reteii the date at al!? 90 vou reca!! mat sonch it was (57? Tosay |56 the tnirg

of Sevterde-. «as it last month?

Yes.

Then it «a5 in August. Did WILL'E ~ave any weapons other than the rock’

No.

- And 72 man was unconscious and then WILLIE started Sitting the man with a rock? 9%, sew

many times did se run ower the tan?

O-<se.

Did he drag the man at a!! «it> the car’

He just ran over hin, just Secned up and fan over Tim and «ept on

Did you see whet pert of the body be ‘on over’

| didn't even look, no.

OK. You hawe been aware that we have been using 4 tape recorder *o tape t" 5s, am cor-ecs”

Yes.

Are you presently under the influence of any drugs or sarcot cs”

No, !'m not right now.

Are you suffering any withdraws! symortoms thet would effect your stasi!ity as ‘ar as your

testimony or your thinking goes?

No. I'm feeling just fine.

In other words, right now your fine, there's nothing dotherins vou and vou ve uncerstcos

al! your constitutional rights, is that correct’? And you w@ivec sour rights to ta « 16 us

voluntarily, rignt? Would you respond, we can't...

Yes.

it doesn't record shaking of the head. Dk, and you agreed =o *aik 56 us volurter ¥. ¢$

thet correct?

Yes.

And 20 promises were made at a!! orior to this interview?’

Rigne

is this @ true and voluntary statement given by you without sromise of -eward, **reat o*

duress so that the true facts in this case may be <nown?

Yes.

And ai! the faces you have just given us, aould you be wi!!ing to testify te «1 @ court of

law?

Yes.

Moy we heave your ful! same again please’

REBECCA PATINO ROMERO CORELLA.

TERMINATION OF STATEMENT AT 1550 MOURS, SEPTEMBER 3, 1972

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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