# Opposition Brief — Richmond v. Lewis > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0308%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 506 U.S. 40 ## Text 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 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 | | i i i i ze if g 4 t Fy i af 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- 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 -— 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 ~—— we “eax'can dude and he wos mayoe §'7"’ Ne waS 9Oing to Zima College | knew Si ‘wut good, he was going to Tima Collene at the time - ‘4 he huwe 2 Susteche or glasses or anything? ‘+ ‘oul 3 tustache. “¢ “Exhibi: II8" 8 _ fn —— — -— | de fo you know if he was a veicran? No, | doen't. Did he Mave anv physical defects, dic xe walk 77 a limp or anything’ Oh, yes. “e said he Nad something «fomg wit 718 2g Ne said Ne Nod something wrorg with his !ag5 and he couldp't “un t-at fast. Se sac something wrong with Sis legs, said he got the wrt before. | think, in Sect, | thing ne said be was in the service defore. He coulcn = walk, frum too good with tis legs because “e Nad something wrong with 51s ‘eqs. And .cu did personally witness a!! this incident, is that correct? “Yes and what property was taken *rom this person? WILLIE took his money and his «sech, | think it was his watch he took. And what did he do with the watch and wallet? He took everything that Se wanted out of the wallet ana the watch, | don’: know whac +e did with that. Were there any credit cards involved at a!! that you know of? we, net that | know of. And Sow much money did he get. do you reca!!? |! think he had about $50. And the wallet wes disposed of in what manner? He just threw it owt the window in the desert In the immediate proximity of where this occurred?’ Yes. And since that time, have you had any defects with that vehicle? What do you mean, defects? Has anything operated or functioned differently since this incident occurred with the car? Yes. The muffler on it is rubbing against the tire underneath, | don't know how you cal! it, but it's rubbing ageinst something and everytime it hits a Sump or everytime sou turn, it makes @ noise. Did WILLIE hawe any response to you after this occurred? Did he say anything or threaten anybody about it? Yean. He said if anybody ever found owt about it. that the only ovo people who cou e!! on him was me and FAY and we'd be in the same position if we did ic, did tell. Was he driving the car that evening? Yes. And did you do anything im an attempt to help him or to stop him while he was commi:* 19 the robbery? | asked him to leave him alone and WILLIE just pushed me and he Fit me once and then the next day WILLIE made me and SHEILA and FAY go with him ower to CAT JONNSON's house where they gamble and we made excuse to leave and we left and we went to ERNEST's howse to stay there and | think we were there maybe an Sour before WILLIE came over. We didn't wanrc to aswer the door but finally we answered it or he was going to creak it in. e oraqged me off the ded and jutpec on me and he jumped on FAY and Se just, you “now, cussed SHELA out. We did call the police but the police never did come. And ALSERT MURPHY (ph) and ROBERT EARL (ph). | suppose you know them too, they are the two that helped se anc SHE!LA get away from WILLIE because we had told inem to tel! WILLIE we were hiding in the Susnes. We told them to cal! WILL'E tract if he didn't give us the car keys and get away from EANEST's house we were going so cal! the po! ice. What was this *s!liow thet was turdered wearing that evening? | think he Set some Slack slacks on and 2 white shirt, |"S mot too sure Did he ever sav where he | ived? No,he didn't. Did, erier to joing up there, did WILLIE mention anything about robbing Sin or did vou ever hear VILLIE threaten that ‘se wanted is money before be Struck bin? BILLIE just Seat Sin wo and took Fis Toney? Fa~ We were driving and ai! of a sudden VILLIE stopped in che desert and ! asked hin, wboe are you Going and be just said, shut up, like thet. And ai! of a sudden be just Lola" es Ose C~) Jam a 3 . oie ' T et out 9F Ihe car ang (he tee 83d, wi 6 yOu went Me Said, ct owt * c@id, i'l} Jive ou “vw “9ney, just ‘reve 1.0%e me etl E juste started itting on ; The Guvc nS ony syoe 24 years gic ghen did »2 Fit Aim with the “den? After 2 .cocaed AIT Ou Kmockes =. down on che G7Du7s,. t9eNM he Seat Him with the rock? ow many times cid Se bis a - the rock’ r.t =°5 times --¢ then he took Ais zrosers.,. sid he do anything, go throwgh his pockets, or what’ foan, "e went through 4:5 socsets and got his wallet and overything and then he , told him, you can't leave him out here like this, he mignet die. And WILLIE told me to shut uo, thot if | said anything about it !'d Se the same way and he just ran over the man. He becked up anc ran over him. What did FAY say about a!! this? Nothing. Was she scared. or did she help WILLIE or what? NO, she wesn't scared She thought WILLIE was a big hero. Can you describe the location where this occurred? No, | can't descri*e it. | could show you. 30 yOu «mow how to get there? Ok, Now gid you get there thet sight? we went through A Mountain. Ok, do you know where the oark, the center is on A Mountain? The A Mountain area, right Ok, you go *urther up, a!/! the wey up and there is a dead end right in there. OK, this is past the sew high schoo! there? Yes. OK, then you gO west on @ street and the street dead ends by a hi!!? Yes Did this man ever attempt to do anything to protect himse! f? Yes, he tried to Fit WILLIE back. After WILLIE hod struck him first? well, when he got owt the car and WILLIE asked Sim for sis money, he tried to Fic WILLIE and WILLIE just knocked him out. WILLIE did ask him for his money first, did he do it forcefully? "Wo, he just said, give me ai! your money, iike chat. Tilen that man was trying to out us a fight but he couldn't secause | remember when be told me that be had something wrong «itt his legs. De you know how guch money “es taken? About $50. Did you receive any part of thet money’ Did the other gir!, FAY, receive amy part of char money’ Whatever she did, it ai! went to WILLIE. The only people that were present was WILL'E RICHMOND, FAY and yourse!* plus the nan? Yes, and then | went howe and toid SHEILA about it 30 SFLILA knows about i*. did 4ILLIE ever talk to her about it? No, | solé SHEILA about it anc | cold SHEILA noe to tel! WILLIE ! said anything. 48 anything ever dome to tne car after this occurred, was the undercarriage washed or craeed of? nm any wey’ Did you observe any blood or Fair or anytining on the undercarriage’ “eo, | left it just the way it «as. Nid you see any damage to the vehicle? ‘est, you wnow, like ! said, the wiffler has fallen down or something, it's making a noise when yw lurn or hit 3 Sump, it rubs Sr rR » a rn Aa »e@ sua ’ Do you roca! mat day of the wevk this «a5 on? A Sweurday, | think. Do you reteii the date at al!? 90 vou reca!! mat sonch it was (57? Tosay |56 the tnirg of Sevterde-. «as it last month? Yes. Then it «a5 in August. Did WILL'E ~ave any weapons other than the rock’ No. - And 72 man was unconscious and then WILLIE started Sitting the man with a rock? 9%, sew many times did se run ower the tan? O- 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