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
~ - — ii ——
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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
. — CE a
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
A-s
+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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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
ee ae mee eee
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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.
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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)
‘ae
—_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
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—— — ©! — "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
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Aa
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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.