Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections, Donald B. Wawrzaszek, Superintendent, Arizona State Prison

H99 all on the verdict under of the circumstances

of this case. majority opinion underscores fears expressed have I a dissent to its granting Slip

earlier order reconsideration. (9th 1993).

op. at 1844-45 Cir. March

If merely certain comments were made

juror, year an almost 10 old conviction for That,

two vicious murders will be set aside. mind, my travesty. is a Wayne JEFFERS,

Jimmie

Petitioner-Appellant, LEWIS, Director, Depart

Samuel Corrections,

ment Donald B.

Wawrzaszek, Superintendent, Arizona Prison, Respondents-Appellees.

No. 86-1840.

United Appeals, States Court of

Ninth Circuit.

Argued July and Submitted 1991. Aug.

Decided 1992.

As Sept. Amended

AMENDED OPINION PREGERSON, Judge: Circuit Wayne Petitioner Jimmie Jeffers was con victed degree of first by murder an Arizona jury. After a sentencing hearing 1978, ‘ trial court found two aggravating circum stances and sentenced Jeffers to death. Jef fers’s sentence was vacated and his case re manded for a new sentencing hearing after Arizona Court’s decision in Watson, 441, State v. 120 Ariz. 586 P.2d 1253 Watson, applied principles of Lockett v. Ohio, 586, 2954, 438 U.S. 98 S.Ct. 57 L.Ed.2d (1978), which held that a sentencer in a capital proceeding cannot be restricted to the specific mitigating factors enumerated in the statute and precluded cannot be from consid ering any aspect of a defendant’s character background that the defendant offers as a impose reason to a sentence other than death. supplementary At the resentencing hear found, 1980,

ing in the trial again two aggravating again factors and sentenced-Jef fers death. After the Arizona sentence, Court affirmed the conviction exhausting remedies, and after his state Jef unsuccessfully fers petitioned the United States District Court for writ of habeas Ricketts, corpus. 627 F.Supp. 1334 Jeffers (D.Ariz.1986). Jeffers then appealed to this regard court. With by the issues raised conviction, Jeffers’s murder we affirmed the. district denial court’s of the writ. With re gard to the issues raised Jeffers’s sen death, tence of we reversed. Leto, v. Rick Donald S. Klein and Frank P. Depu- etts, (9th Cir.1987). Defenders, 832 F.2d 476 ty Public Pima The Su County Public preme Office, Tucson, AZ, ruling Court then reversed our Defender’s on the petitioner- for sentence, Jeffers, 764, Lewis v. appellant. 497 U.S. (1990), S.Ct. 111 L.Ed.2d 606 and re McMurdie, Counsel, Paul J. Chief Criminal turned this case to us resolution of the Section, Appeals Attorney Office, General’s sentencing issues we did not consider our Tucson, AZ, for respondents-appellees. Now, opinion. earlier considering after these regarding issues the constitution CANBY, Before: ality death, PREGERSON and of this again sentence of we Judges, WILSON, Circuit District reverse the district court and remand for Judge.* issuance of the writ.

* Wilson, nia, Stephen The Honorable V. sitting by designation. United States Judge District for the Central District of Califor- § 13- depraved.” Ariz.Rev.Stat. I.' 703(F)(6).1 re- sentencing statute capital resentencing, appeal after On direct preside over trial court the state quires “grave Supreme Court held ag- the existence hearing on evidentiary factor did of death” risk Ariz.Rev. factors. gravating this case. State apply the facts 13-703(B). is re- trial court § Stat. 428-29, 661 P.2d Ariz. Jeffers, 135 the existence findings on make quired to denied, 464 U.S. cert. statute. listed factors any aggravating (1983). The Arizona L.Ed.2d such finds trial If the the murder held that Supreme Court also findings on make exists, must then

factor but affirmed especially cruel The final mitigating factors. existence and heinous especially finding that it was a impose court trial the requires step 429-30, 661 P.2d Ariz. at depraved. Id. 135 that there if it determines of death sentence Supreme Court at 1130-31. sufficiently substan- mitigating factors are no aggravating finding one the thus reversed leniency. tial to call finding the the on and modified circumstance in was resentenced time Jeffers At the Nevertheless, remanding instead of second. mitigat- specific five 1980, listed the statute resentencing, court for the to the trial case § 13- Ariz.Rev.Stat. ing See factors. Jef- Supreme Court affirmed been 703(G)(l)-(5). also had- The statute of death. fers’s sentence provi- general catch-all a to include amended Arizona Su- maintains that the Jeffers statutory list of the clear that made sion that sen- affirmed his improperly preme Court Thus, exclusive. was not mitigating factors finding the though it invalidated tence even that provides amended statute the the modified aggravating factor and of one proffered “any factors include circumstances contends finding the second. are state or the by the defendant required to Supreme Court was impose a determining whether to in relevant resentencing. case for remand his death, including any as- than less sentence character, propensi- defendant’s pect of the II. any the circumstances and or record ties ” § 13- Ariz.Rev.Stat. the offense:... deci- that the Court’s believe We 703(G). use the label opinion, we In Mississippi 494 U.S. sion Clemons refer to factors” to “nonstatutory mitigating (1990), com- L.Ed.2d 725 specifically are not mitigating factors to the Arizona return this case pels us to (G)(1) (G)(5),but in subsections enumerated — Clemons, jury sentenced courts. catch- in this broad included are nonetheless finding aggrava- two to death after defendant provision. all ag- finding also these ting factors and outweighed the factors factors gravating court the trial resentencing in On factor, that the aggravating mitigation. One on the basis to death sentenced Jeffers heinous, atrocious, or “especially First, killing circumstances. aggravating two unconstitutionally vague, cruel,” that, commit- while found sentencing court in- that factor did jury’s on instruction knowingly created a murder, Jeffers ting the Thus, the narrowing construction. clude person in another death grave risk of a valid on both based of death was sentence Ariz.Rev.Stat. See to the victim. addition Neverthe- factor. aggravating an invalid Second, court 13-703(F)(3). the trial § Supreme Court less, affirmed Mississippi in a the murder committed that Jeffers found heinous, of death. the sentence cruel “especially that was manner case, its find- worded the trial court disjunctive, In Jeffers’s worded in is The statute 1. stating conjunctive, defendant has held in the Court upon is satisfied (F)(6) in a manner that aggravating circumstance the murder committed cruelty, (em- hei- showing heinous, of either appropriate depraved.” cruel and "especially an nousness, Wallace, 151 depravity. State or added). phasis 366-67, 236-37 728 P.2d Ariz. explained clearly Supreme Court Clemons does reveal that the court impose sentence the decision type appellate that when conducted the valid and invalid of death is based on both in the described Clemons decision. factors, appellate state conducting the sentence after can affirm A. First, analysis itself. certain further might engage aggra- in some appellate court has noted that state Clemons, analysis. vating error form of harmless circumstances differ from state 752-53, 110 S.Ct. at Sec they play statutory state in the role 1450. ond, reweigh might carefully procedures controlling capital sentencing against aggra Clemons, valid 744-45, decision. See 494 U.S. at vating factor factors conclude 110 S.Ct. at A “weighing” 1445-46. state required a of death. balance still sentence one in which the ultimate decision 494 U.S. at 110 S.Ct. at weighing turns Court concluded that against factors evidence. Mississippi When a clearly did not reveal that the court had “weighing” state determines that a sentence analyses. either of these Be undertaken of death is on opinion supreme state based both valid and cause the invalid factors, aggravating ambiguous, Supreme held the was the that sentence of déath original the error not been automatically. constitutional had cannot be affirmed There cured. proceedings must be further in the sentenc ing analysis by court or further the state Clemons, analysis Following in the we appellate Clemons, court itself. See 494 U.S. conclude that when the Arizona 754, 110 S.Ct. 1451.2 As the aggravating Court invalidated one factor and Clemons, explained in a appellate second, modified the it could the sen affirm may court in such a situation affirm á sen only of a harm conducting tence death after of conducting tence death after a harm analysis reweighing mitigat less error or the reweighing mitigat error or less review ing against ag remaining evidence valid ing against aggravating evidence the valid gravating Ari factors. The factors. a weighing state. When is however, Court, not suffi is factor, aggravating there is at least one ciently clear to us to enable determine that Arizona statute calls for the to sentencer appellate reweighing court conducted the by evaluating life decide between and death in Nor described Clemons. did the Arizona “mitigating whether there are circumstances Supreme Court a conduct harmless error sufficiently leniency.” to call for substantial analysis. As a consequence, of sentence 13-703(E). § Ariz.Rev.Stat. proceedings death cannot stand. Further in required. the Arizona courts are case, argument At oral in this and in the Court, United States see Richmond explains Section A that Arizona is a — Lewis, U.S. —, 121 “weighing” pro- state in the analytical (1993), representatives L.Ed.2d 411 legal in apply. cedures described Section Clemons explains acknowledged B of the State of Arizona that mitigating there evi- weigh “weighing” against dence to Arizona is .a state as valid that term is aggravating used in factors in Jeffers’s the Clemons decision. case. Sec- Once explains tion C Court concluded Jef- Court did not conduct a harmless error anal- fers was sentenced to death on the of basis ysis Finally, explains factors, this case. findings Section D invalid n opinion' of the Arizona applied. rule of Clemons defendants, weighing give 2. "An automatic rule of affirmance in a the individualized treatment Ohio, state would be reweighing invalid under Lockettv. 438 would result from actual of the mix (1978), U.S. 57 [98 973] 586 S.Ct. L.Ed.2d factors and circum- Oklahoma, Eddings [102 455 104 stances.” atU.S. 110 S.Ct. at (1982), (citations omitted). S.Ct. 1] L.Ed.2d it would B. not discuss whether Jeffers’s did qualified nonstatutory mitigation. as state, weighing invalidation Even in Although did may aggravating factors of one of several nonstatutory evidence as mit- not discuss this mitigat if there were no no difference make played have igation, this evidence should Although the ing to balance. circumstances any appellate reweighing. role Our hold- any find case did not trial court in this McCormick, ing F.2d in Smith v. circumstances, statutory mitigating it clear (9th Cir.1990), it clear that there re- makes mitigation for the that there was mitigating evidence to consider in mained Supreme Court to consider Smith, appellate reweighing. such an we in accor conducted reject- erred held that Montana courts requirements of Clemons. dance with ing mitigating impairment evidence of mental nothing there This is not a case in which simply not rise to a because level aggrava mitigation against balance wording enough satisfy the substantial ting factors. statutory mitigating Montana’s circumstance. Jeffers, imposing Before sentence impairment evidence mental “Because regard- court heard information did not rise level ‘extreme’ difficult childhood. Jeffers’s Jeffers’s ‘substantial,’ ‘rejected’ the evidence was as told the that Jeffers was a mother circumstance, rather than con- child until he became addicted her- decent sidered, as a circumstance of less- involved in crime. Addition- oin and became Smith, weight, along with factors.” er other mitigation presented al about at 1167. 914 F.2d addiction, heroin and of heroin use Jeffers’s uncontradicted evidence Jef- and alcohol intoxication at the time of the qualified fers’s intoxication and addiction presented history of his murder. nonstatutory mitigation. Dug Parker v. .victim, stormy relationship with the love-hate Cf. 308, 314-16, 731, 736, ger, U.S. including provoked evidence that she had (1991) (discussing drug 112 L.Ed.2d 812 by informing police. him to the him on nonstatutory mitiga alcohol intoxication as sentencing The court considered whether tion). addiction, Even if Jeffers’s heroin in sepa- met the standard of two this evidence toxication, relationship victim with his statutory mitigating It not rate factors.3 did qualify statutory mitigating did not as cir nonstatutory mitiga- this evidence as discuss cumstance, holding of Smith v. McCor review, Supreme Court tion. On the Arizona mick makes clear that these circumstances upon restricted its discussion to the facts nonstatutory been should have considered handing the trial court in relied down mitigating explains factors. Smith also that sentencing special its verdict. 661 P.2d at nonstatutory mitigating evidence must all affirming findings, In the trial court’s in 914 F.2d at be considered combination. Supreme agreed Court that the 1168-69. not meet evidence did the standard statutory resentencing hearing, At the Jef- mitigating factors. Like the sen- tencing court, introduced evidence that he contin- Arizona Court fers also statutory significant considering circumstance In the evidence Jeffers was proved. Jeffers, impairment not and was heroin addict under influence murder, Ariz. at 661 P.2d at 1132. and alcohol at the time of the heroin sentencing inquired ‘‘[t]he whether defen- considering relationship Jeffers's with the capacity appreciate wrongfulness dant’s victim and the evidence that she informed on his conduct or to conform his conduct to the authorities, to law enforcement the sentenc- him impaired, significantly requirements of law was ”[t]he whether defendant court considered impaired duress, but not so as to constitute a defense to al- unusual and substantial under 13—703(G)(1). § prosecution.” Ariz.Rev.Stat. though a- not such as to constitute defense to ' 13-703(G)(2). sentencing § court declined to find that Jeffers prosecution.” Ariz.Rev.Stat. "significantly ability impaired” sentencing in his con- court determined that Jeffers's satisfy to the law or to that his actions did form understand wrong. Court of "unusual and substantial du- were af- circumstance sentencing that the ress." firmed the court's conclusion deny ued to in involvement the murder when sentence of death is based on both valid spoke psychiatrist he with a while under the and invalid aggravating factors, may, it amytal. influence of argued cases, sodium certain affirm the sentence of death appeal that this was after determining the error was harmless. sentencing court had failed to con- 494 U.S. at 110 S.Ct. at 1450. sider. After concluding that There nothing

court had considered all the evidence at the in the opinion of trial and at post-trial hearings, suggest Court to the Ari- that it upheld rejected zona Jeffers’s Jeffers’s sentence .on the claim. basis of analysis Nevertheless, for harmless error. The words accepted “harmless error” argument appear Jeffers’s do not the sodium the Ari amytal proper Court’s evidence was discussion of — evidence in miti- Jeffers’s Thus, Sochor, gation.4 appears at —, sentence. the sodium U.S. Cf. S.Ct. amytal at 2123 (describing ambiguities should Flori be considered da some fashion-in Court’s discussion Sochor’s prevented the evidence in sentence which mitigation. conclusion that the supreme court had conducted a harm Thus, the record in this case con analysis). less error tains nonstatutory mitigation evidence. Court did not discuss whether the invalid Even if evidence was not findings of aggravating circumstances con sufficiently substantial leniency call for tributed to the outcome of weighed against when original aggrava proceeding. Nor did the court discuss factors, ting the removal of the invalid aggra whether or not the outcome would have been vating factor and the modification of the valid the same absence the invalid find factor can change Parker, the balance. See ings. conclude We the Arizona Su at 740. S.Ct. Some preme engage in a harmless one reweigh perform must harmless error analysis error in this case.6 analysis.5 D.

C. As explains, Clemons when a state The second open alternative course appellate in weighing court a state finds that Arizona reweigh was to the 4. The Arizona Court noted that while of the example, evidence. For the amytal sodium ordinarily would not be court found that the defendant "was an addict court, admissible in mitigation in drinking using and was both narcotics on not need to meet normal standards of admissibil the of the Similarly, date offense.” the court ity. holding In amytal the sodium "may found the defendant have had reason evidence, however, mitigation admissible as provoked to be and was under some stress." clearly Court did not ex requires The Constitution that the sentencer be plain exacdy how it was permitted relevant. give Defendants to some effect adequately- to these permitted are often suggest to facts, proven residual doubt they even if do not estab guilt about their is a reason for a impairment sentence less lish enough or duress severe to satis Nevertheless, than death. the fy statutory Constitution does a Finally, circumstance. not entitle arguments. defendants to raise such even in a case where the court fails to 164, 172-73, Lynaugh, Franklin v. 487 U.S. factors, find the existence of reli 2320, 2326, (1988). S.Ct. 101 L.Ed.2d 155 At ance an invalid on factor neverthe argument, oral suggested that his requires denial less supreme the state court to either responsibility of for the while murder under the express undertake an analysis, harmless error influence amytal of supported sodium argu- reweigh, the resentencing. or remand for Sochor v. — ment mentally impaired that he Florida, —, at the time U.S. 112 S.Ct. of the Godfrey Kemp, crime. 836 F.2d L.Ed.2d Cf. (11th Cir.1988). 1559-60 case, argument 6. At oral in 5. General, This is not a case of of Attorney represented Arizona by his Chief Coun- rejecting unpersuasive sel, clearly Division, evidence. Jeffers Appeals acknowledged Criminal satisfied requirement of that the Arizona Court did not conduct proving mitigation facts by preponderance in a analysis. error harmless aggravation. Similarly, appel- in an factors against mitigating evidence conclusory restatement of the to late court’s task is de- factor. Our valid statutory language mitigat- there no Supreme Court are termine whether sufficiently to call for de- substantial appellate factors performed invalid leniency From our would not save an otherwise opinion. in the Clemons scribed Keeping principles Arizona Su- sentence of death. these reading opinion of the mind, to Ari- to us in we turn Jeffers, it is clear preme Court per- to Court. performed or intended court reweighing con- appellate kind of form the opinion.

templated in the Clemons 2. of the Arizona text 1. case refers brief Court’s decision Jeffers’s Lewis, It is not ly weighing process. to some sort of Richmond us, however, that the court was clear to “do not previous its decisions noted that describing type required of review clarity with which a degree of specify the reweigh in order Clemons. appellate court must state invalid death sentence.” cure otherwise weighing appears in first reference to — at —, Richmond, at 535. S.Ct. U.S. portion introduction to court’s opin cited some The Richmond decision sentencing proceeding, opinion discussing the degree included discussion ions that scope of its describes court appellate court clarity required state when appellate review: valid death sentence affirms an otherwise indepen- penalty this court In death eases analysis. These harmless error the basis of trial court dently-reviews the facts that the guidance. some cases furnish presence or absence found established the circumstances, we deter- obligat appellate A outweigh if the latter mine for ourselves “meaningful review,”, and it perform ed to pres- be former we find both to when “by simply function recit not fulfill that does ent. Sochor, error.” ing the for harmless formula — (O’Con at —, 428, 661 135 Ariz. P.2d at J., nor, concurring). “An court’s demonstrates, quotation the court As this that an error of constitutional bald assertion its discussion was restricted announced that cannot was ‘harmless’ substitute dimensions upon trial relied facts which the explanation how the court principled handing special its verdict. Our down Id. As the Court reached that conclusion.” reading Court’s harm suggested some forms of that, indeed, regard with opinion reveals analysis require “a detailed less error would mitigation, the more than review court did no the explanation based on record.” sentencing findings and affirm its the court’s at 1451. at judgment that to meet the the evidence failed mitigating sug- statutory of circum- opinion in standards two Sochor Justice O’Connor’s Ari- Neither the trial court nor the an court’s decision to stances. gests appellate that Supreme the evidence sentence of death Court discussed uphold an otherwise invalid by simply reciting nonstatutory mitigation. According to as the cannot review survive appellate quotation opinion, re- from the court’s the court boilerplate sentence.7 The only “weighs” in it a trial court’s weighing described the Clemons decision when sustains simply stating findings aggravating mitigating than that more that both contemplates present. court has concluded that the factors are Because the Arizona appellate the mitigation any findings outweigh factors in do not the Court did not affirm of Ricketts, opinion. pri The We do not view Clark 958 F.2d 851 discussion the issue in the (9th Cir.1991), approving any boilerplate mary appellate in Clark whether the as such appellate issue was reweighing by supreme adequately had reviewed the recitation court. court Clark, appears applied there been the have no attack on record correct standard deter appellate weighing process, the is that existed. there no mine circumstances circumstances, mitigating the descrip- court’s that there mitigating evidence. These indications, suggests however, tion of its method the court are ambiguous. also special, engage any weighing process. would verdict of the sentencing court states that there are “no” mitigating circum- Nevertheless, the court “weigh- refers to stances. The Supreme Court, Arizona how- ing” eonclusory in a sentence at the end of ever, characterized findings the of the sen- opinion: tencing. court differently. It said that carefully haveWe reviewed the record as sentencing court “found no mitigating factors required to determine whether the factors sufficiently substantial to call leniency.” for mitigation outweigh the aggravating cir- 135 Ariz. at 661 P.2d at 1132. Such a cumstances, they and we find do not. suggests characterization that while there Ariz. 661 P.2d at 1132-33 was mitigating evidence' to enter into the (citation omitted). We are not sure that balance, it did not call leniency for when communicates, sentence or was weighed against intended to both the as well invalid communicate, the valid aggravating Arizona Parker, factors. Cf. performed type Court 498 U.S. at re- S.Ct. at (discussing significance weighing of a described in court’s finding the Clemons decision.8 of “no miti- gating circumstances that outweigh ag- Although there evidence to circumstances”). gravating Such a charac- reweigh against aggrava- valid ambiguous, terization is however, because factor, ting we cannot determine whether the is identical to language of the statute. Arizona acknowledged Court 13-703(E) (the § See Ariz.Rev.Stat. sentenc- presence mitigation. of this ing court impose “shall a sentence of death if ambiguous. In reviewing findings ... there are no mitigating circumstances court, Supreme. Arizona Court sufficiently substantial to call leniency”). for no more than affirm By stating that cóurt “found addiction, heroin drug and intoxi- alcohol no circumstances sufficiently sub- cation, and the history of Jeffers’s relation- stantial to call leniency,” for ship with the victim failed to the stan- meet may simply Court saying have been statutory dards of two mitigating factors. that the trial court considered the record and court expressly did not discuss the evi- imposed a sentence of death.9 nonstatutory dence as mitigation. The court ambiguous Another reference to appeared acknowledge that the sodium evidence leaves it unclear whether or not the amytal mitigating, but recognized that the context rejecting argument Jeffers’s nonstatutory there was mitigation to re- that the sentencing court failed to consider it. weigh. In stating it “reviewed the record as The Arizona Court did not discuss required to determine whether the factors in particular mitigating evidence in its mitigation outweigh circum- brief, one-sentence “weighing.” reference to stances,” ap- hand, On the other there' are indications pears acknowledge that there are factors recognized mitigation.10 hand, the other On the same review, 8. The “weighing” court's ity references to are con- simply recited fusing part suggests because the language first reference there were "no factors weighing that there will be opin- no sufficiently all in an leniency.” to call substantial ion in are findings there no trial Ariz. at 661 P.2d at 1133. eonclusory mitigating circumstances to Yet affirm. the weighing one-sentence reference to and this sec- suggesting court includes a sentence eonclusory some ond propor- sentence in the court's weighing kind of apparent tionality occurred. This con- opinion's only review the constitute dis- tradiction ambiguity contributes to the of the relationship mitigating cussion of the of the evi- opinion impedes ability and our to determine aggravation. dence to the factors in actually reweighed whether the court mitiga- the against remaining tion the aggravating valid fac- mitigation 10.One factor in to the tor. Supreme may referring Court have been is the opportu- information that Jeffers was offered the Similarly, referring 9. in insufficiency nity to the plead of to guilty accept impris- a term of .and mitigating the evidence in the brief proportional- case, reviewing onment. In the record of this 1208 aggravation to factors in refers also

sentence already had deter- though even reading of the Ari- Our of recent decisions in one factor mined that there our view that Supreme confirms Court sentencing equa- weigh presume in the cannot this record to we aggravation type Supreme Court undertook the refer court did not to tion. Because contemplated appellate reweighing of careful factors, because mitigating and specific by the decision. Now that Clemons Clemons aggravating factors in the to court referred duty appellate of courts in has clarified the de- possible that court was it is plural, states, appears weighing it that the Arizona rather than generalized formula scribing a choosing to remand Supreme has been Court reweighing actual of an reporting result reweigh it valid rather than when finds both mitiga- aggravation mix of specific of aggravating factors. and invalid particular case. tion in Jeffers’s that is informative about decision most its Court’s view of role the Arizona according reweighing,. Appellate Medrano, applying in is State v. 173 Clemons deprive de opinion, cannot to the Clemons (1992). Medrano, 393, Ariz. 560 844 P.2d treatment of “the individualized fendants aggravating circum- the trial court found two reweighing from of actual would result mitigating sufficiently no stances and factors aggravating factors and the mix leniency. for After substantial call invali- Clemons, 752, 494 U.S. at circumstances.” factors, dating aggravating two one opinion at 1450. The Clemons 110 S.Ct. the Arizona remanded for resentencing reweighing. suggests court must actual instead of that an court said: aggravating remaining ly reweigh the valid statutory aggrava Because one of the two mitigating evidence. Such against factor ting circumstances found the trial court require appeal* some would aside, only specu can must be set and we significance specific discussion late whether the court would have found gravity in relation to mitigation single sufficient to overcome the aggravating valid factor. of the circumstance, remaining aggravating we in no such There is discussion hearing for resentenc remand another By stating that the Arizona Court. 323, ing. Schaaf, v. 169 Ariz. See State mitigation outweigh the in did not factors (1991) (one P.2d two aggravation, the Arizona factors aside; set re circumstances acknowledge that appeared to there resentencing); Lopez, v. manded Yet there mitigating circumstances. were (1990) 108, 116, 163 Ariz. 786 P.2d specific of those was no discussion Note, (same); Appellate see also Review of gravi no of the discussion circumstances Analysis An of the Im Death Sentences: ty remaining aggravating factor'. We Arizona, Mississippi pact of Clemons the Arizona cannot be sure 34 Ariz.L.Rev. 141 reweighing of an “actual Court conducted at Id. 173 Ariz. 844 P.2d at 565. The mitigating factors and the mix of note criticized law review cited Medrano circumstances.” inconsistent Court’s added). practice past in cases in which Clemons (emphasis plea bring Jeffers did offers attention district court concluded informa federal negotiations plea ap- plea direct such offers tion about Thus, peal. under Arizona law. Court was is considered Jef Ricketts, F.Supp. clearly plea negotiations at 1358. aware of the when fers mitigation.” 135 Ariz. at referred to "factors plea Although were references there Because of our 661 P.2d at 1132-33. proceedings, the trial in the record of offers case, holding not determine in this we need sentencing court's at- failed to direct the statement that it whether a court's affirmative information. The tention independently mitigation for searches the record for it searched the entire record court stated that customary burden of plea a defendant relieves mitigation, mention the offers but it not bringing mitigating rele- producing special verdict. its

1209 applied. argued would have The old, note than years thirteen the Arizona courts Supreme adopt the Arizona Court should a perform a new sentencing’ .must calculus. practice remanding uniform for resentenc- suggested Court has. conducting appellate instead of re- that such resentencing decisions should be weighing that authorized. Clemons based on the freshest testimony possible: note, along court’s of that citation with its “When a defendant is to be resentenced in practice remanding more recent in cases cases, death testimony and should Clemons apply, would bolster our possible, as fresh be and ... relying on a . “weighing” view the references to in the previous hearing mitigation aggrava opinion necessarily suggest do not tion conducted months before the imposition performed per- court or intended to of the death penalty is not recommended.” appellate form the reweighing described Rossi, State v. 359, 2, 146 Ariz. the Clemons opinion.11 369 n. 371, (1985). P.2d realize, 381 n. We howev 4. er, the Constitution does always We therefore conclude that when the Ari- require a sentencing new hearing, see Par Court invalidated one of the ker, 321-23, 740, 111 S.Ct. at aggravating upon factors which the trial up it is Arizona to determine death, court based the sentence of Jeffers’s it proceed.12 how wishes to sentence could not stand without new sen- tencing hearing reweighing or a of the miti- We judgment REVERSE the of the Dis- gating against valid trict Court and REMAND entry of an aggravating factor. Because the directing order the State of Arizona to initi- clearly does appropriate ate proceedings in state court demonstrate the court performed or within a period reasonable of time.13 perform even appel- intended to the careful reweighing late the Clemons described opinion, the sentence of death cannot stand. WILSON, Judge, District dissenting:

IV. majority again oversteps proper Although transcripts role of a federal testimony hearing court a challenge of Jeffers’s hearing are now more constitutionality of a death un- sentence vant-portions of the record to court's atten- mitigating there were no weigh circumstances to tion. against Indeed, aggravating factor. as we II.B., explained earlier in section there was non- 11. We have found one other Arizona death statutory mitigation reweigh. evidence to penalty case opinion: that refers to the Clemons only briefly It clearly discusses Clemons and it is case, distinguishable from the In this facts of this case. In Court's 12. Robinson, 51, State v. 165 Ariz. reweigh 796 P.2d 853 remanding, may discretion to without be (1990), aggrava court found three by prior constrained its decisions to remand for ting circumstances. The Arizona Clemons, resentencing in cases. similar See aggravating set one of those circumstances aside. 5, U.S. at 754-55 n. 110 S.Ct. at n. 5. In 165 Ariz. at 796 P.2d at 862. The court then Lopez, State v. 163 Ariz. 786 P.2d 959 cited one Clemons stated that "the elimination of (1990), the,trial court sentenced the defendant to aggravating factor does not mandate a re finding aggravating death after two factors and resentencing mand to the trial court for when the purporting to find no factors. After compels finding record on the as a matter issue concluding that one of the two fac- of law.” court said that Robinson had of invalid, tors circumstances, fered no the trial court resentencing. remanded to the trial court for Id. circumstances, mitigating, had found no and the 163 Ariz. at 786 P.2d at 967. The Arizona agreed with the trial court that none exist Lopez Court followed in a similar case. ed. 165 Ariz. Although 796 P.2d at 863. Schaaf, See State v. 169 Ariz. 819 P.2d 909 review, performed proportionality it finding After that one of two Thus, reweighing. never mentioned in the wake invalid, factors was required the court held that was of out Robinson affirmed decision with resentencing to remand for instead of in a case in which the nonexis conducting reweighing. Id. 169 tence of circumstances was not even Ariz. at P.2d at 920-21. supreme contested the state court could de clare that were no contrast, there circum case, stances at all. light disposition, In in Jefferses of our we have no need to suggested Court never reach the other claims made Jeffers. strangling impaired not while again dination Accordingly, I must law. state der (8 body, RT of disposing the and victim his dissent. respectfully aggressive behavior 91), and and his excited Su- the majority believes The using with killing was inconsistent during the discharged its may have not preme Court ag- inhibits heroin, depressant, as a reweigh aggrava- the duty to constitutional 121). (6/20/80 RT behavior. gressive after invalidat- evidence ting and the that testimony trial also showed at The and modi- circumstance

ing one petition- with engage in sex to refused victim majority’s conclusion The fying another. provided her, may have paid and unless he er by record the supported not regard is petitioner’s police about to the information habeas wholly with deferential at odds is and shows further The record activities. criminal corpus review. request- jury the the court instructed the the sentenc- case shows in this The record voluntary and of intoxication defenses ed fully Supreme judge and Arizona 74). (6/14/78 RT manslaughter. offered mitigating evidence all considered called sentencing, petitioner original At the this evi- concluded separately petitioner and his who offered psychiatrist a leniency. call for not dence his conduct capacity to conform petitioner’s at the likely impaired norms societal to Hearings Sentencing The A. of heroin given his use killing, time leniency principally for claim Petitioner’s the victim. relationship with his stressful and her- his use of argument rested on expert testi- no rebuttal presented over and day the murder oin, of on the both mony. con- capacity to run, his long diminished rejected petitioner’s judge sentencing requirements of conduct his form clearly con- capacity, but of diminished claim “stormy” love- his given particularly law— evidence: unrebutted petitioner’s sidered dual These the victim. relationship with hate (cid:127) the Court argued to you have Since were provocation and of intoxication themes existed, mitigating circumstances a under sentencing judge presented you as exist circumstances if those argument, both capacity” single “diminished exist, that me, they did argued to have (6/14/78 64- RT first at the judgment be the Court’s they not in would (7/10/80 RT resentencing, 72),1 and at leniency for to call sufficiently substantial dis- as they framed 46,127), although were circumstances in view of circumstances. tinct this case. 209-10). 173-174, (7/10/80 RT 87). (6/14/78 RT great deal of a judge heard Supreme appeal, the drug On concerning petitioner’s at trial that, Lockett v. Ohio under relationship held petitioner’s well usage, as present Watson, was entitled petitioner girlfriend. victim, a former with evidence, just the any relevant used petitioner testimony trial showed theAt by statute. relevant murder, deemed but day on the heroin evi- represented petitioner resentencing, eye witness testimony due capacity concerning his diminished dence behavior petitioner’s crime showed along with provocation, to intoxication way com- meaningful while impaired time first for the Petitioner .claim. high new Petitioner had mitting murder. responsibil- truthfully denied he claimed (6 7 RT RT heroin for tolerance the influence under murder ity while very manage 44, 57), and could RT 6/20/80 amytal.2 sodium 92). (8 coor- Petitioner’s RT drugs. on well petitioner also introduced majority claims transcript 2. The reporter's is to the 1. This reference childhood,” supra p. "his difficult reporter’s to a aWhere reference June mother petitioner’s record shows but date, specific transcript without is made boy” regular in- was "a her son testified that report- particular volume citation collecting he until archery coin volved transcript the trial. er’s 78). (6/14/78 RT in narcotics. became involved 167). sentencing judge acknowledged The its RT At the reconvened resentencing, duty every possible arguments to consider “each and final presented. were sen- The urged,” circumstance that is tencing judge then found the ag- same two (6/20/80 138), “regardless RT of whether it’s gravating again circumstances and concluded (6/20/80 ever been mentioned before.” RT petitioner prove had failed to the existence of 177). mitigating circumstances. I quote length from the psychiatrist sentencing

Petitioner called the same who judge’s special verdict to testified at the first explain sentenc- show er’s careful attention petitioner’s duress, intoxication and evidence as well offered in mitigation: explain as to concerning new evidence amytal. sodium Petitioner the evi- offered Mitigating Circumstances, Subsection G. dence of statements amytal his under sodium The Court finds that there are mitigat- no as direct evidence of his innocence —the “ulti- ing circumstances. regard, (6/20/80 mate” evidence. RT 142- Court has present- considered all evidence 43).3 suggested Petitioner further the sodi- ed in post-trial and in trial hear- amytal um evidence disprove tended to ings, the pre-sentence report and ac- all existence of the two aggravating circum- companying documents. stances previously found the court. The Court has further considered all of (6/20/80 147). RT possible mitigating circumstances which were enumerated subparagraph 1 psychiatrist state called its own through 4 of subsection G. under A.R.S. rebuttal. expert peti- The state’s believed 13-454, the Court has further consid- might tioner impaired have been somewhat possible ered the mitigating circumstances murder, at the time due to his use of set subparagraph forth in through 5 of heroin and the difficult relationship love-hate the new A.R.S. section G. victim, rejected with the petitioner’s but prolonged claim that use of heroin Court’s Search would cir- itself lessening capacity cumstances has not cause to conform been limited to either (6/20/80 one’s of these pursuant conduct to societal norms. statutes but RT to State v. 127). (sic) psychiatrist Watson and state’s Lockwood v. further Ohio testified Court has concerning peti- any possible the evidence considered mitigat- tioner’s amytal statements under sodium circumstance. since the unreliable literature most shows It is true that the defendant was an

people are able to maintain a lie while under addict drinking and was both using (6/20/80 amytal. the influence of sodium RT offense, narcotics on the date of the but 87).4 there is no credible evidence that the de- capacity appreciate fendant’s wrong- length Due to the testimony from fulness of his conduct or to conform his psychiatrists, and the court’s interest in requirements conduct to the law reviewing the amytal literature on sodium significantly impaired. (6/20/80 144),, adjourned RT the court hearing for three weeks. (6/20/80 ^{[*****] [*]} Thus, category mitigating is no there only thing evidence THE COURT: That's the I could concerning separate a troubled childhood from figure out. concerning petitioner's addiction MR. That's what it's KLEIN: for. drugs. only thing THE COURT: That's the I could figure out. finding you expecting THE COURT: What are guess MR. I KLEIN: that's ultimate miti- amytal Court to make because of the sodium' gation. finding Is evidence? this directed toward a of a mitigating circumstance? psychiatrist 4. Petitioner's conceded that people MR. KLEIN: Yes. (RT amytal can lie under the influence of sodium THE COURT: What is the circum- 63), stance, particularly they if have a vested interest defendant still his in- maintains (RT 74), maintaining although nocence? the lie felt he crime, MR. yes. petitioner KLEIN: That he didn't do the lying. was- not judge so. said gating circumstances. no credible Likewise, there considered judge properly and The unusual under defendant non-statutory cate- statutory and under the evidence that There is duress. substantial mitigating circumstances. gories of provoked reason to be may had have he that he stress some under meaningful residu Moreover, there was no Penelope killing for had motives may have once left over of evidence category al nothing more. Cheney, but had petitioner sentencing judge concluded aggra- of existence of the findings These statutory mitigating prove either failed to nonexistence and the vating circumstances not which does Intoxication circumstances. are both circumstances any mitigating of simply does impairment significant lead to a doubt. reasonable beyond a made respon the defendant’s question not call into at 216-17. RT 7/14/80 a further or otherwise actions sibility for his premise constitu- relevant to is not leniency i.e., effort majority’s claim for The — sentencing judge’s consid- on the The error evidence. tional much, holding is unsound. that evidence recognized as of has eration murder, sentencing court with that majority at the time claims The intoxication heroin petitioner’s impairment, is showing significant considered have out a should relationship intoxication, with Lo v. addiction, State mitigating circumstance. 959, “nonstatutory mitigating fac- 108, 114, 965 786 P.2d as victim 163 Ariz. pez, his correctly 359, sentencing Rossi, 706 P.2d Ariz. tors,” (1990); if the 146 even v. Woratzeck, make out a Ariz. did not 134 (1985); 371, the evidence State v. determined 379 (1982).5 The ma- 865, circumstance. 458, 871 statutory P.2d obligation on the creates jority in effect was an- Likewise, petitioner fact that discuss, expressly - to courts part of state no has Cheney’s conduct by Penelope gered “nonstatutory mitigation,” rubric under it can be leniency unless tendency to call for falls short all evidence interfered petitioner’s emotions said that mitigation. threshold to his conduct ability to his conform with analy- exceedingly technical majority’s requirements of the law.6 con- without substance form over sis elevates transcripts record, where justi- this On without imperative stitutional —and sentencing court considered clearly show from the It is clear record. in the fication mitigation, federal offered hearings the evidence sentencing that transcripts of the is limited whether corpus review habeas to death petitioner sentenced judge who miti- no have found addiction, factfinder could rational evidence fully considered present. Parker be gating circumstances miti- no intoxication, and found and duress commonly who 854, afflicts those disorder since that determination Supreme Court's denied, intoxication, kill), 110 S.Ct. some 493 U.S. without cert. evidence of that impairment, not relevant is meaningful level of 107 L.Ed.2d a considered mitigation, reflects evidence drugs alcohol in role of judgment about the Su- dispute the majority does not 6. The many if not most that fact capital crimes. sentencing conclusion preme Court's drugs or al consumed death-eligible defendants amytal evidence. the sodium court considered degree committing murder first prior to cohol resentencing presented at the This evidence why explain those individ help to alone does not 20, 1980, lengthy exami- hearing involved June voluntary mercy. act be should shown uals ex- two medical cross-examination nation and tendency no drugs has taking alcohol witnesses, published part of pert and consisted per also be sáid it can mitigate unless sentencing judge he read. said articles which significant manner in some behavior son's 177). (7/10/80 When RT by act. I believe influenced peti- beyond doubt that a reasonable concluded irrelevant to classify as may such evidence courts Cheney, Penelope this tioner killed violating mitigation without issues Contrary equation. dropped out Pulley, 885 v. F.2d Harris See Constitution. assertion, supra there was no majority's amended, (9th Cir.1988), (9th Cir. amytal left category of sodium residual 1989) (courts as a consider need consider for the Arizona death-eligible de circumstance appeal. personality an anti-social suffers from fendant 308, 321-23, Dugger, bility 498 U.S. as well as evidence adduced at trial 731, 740, (1991) (citing 112 L.Ed.2d 812 Lew including appellant’s testimony along own 764, 110 Jeffers, 497 U.S. S.Ct. appellant’s prior with conviction for for- (1990)). properly L.Ed.2d Under gery introduced for impeachment pur- standard, deferential poses. The record shows the trial court finding petitioner proved court’s had not considered all presented the evidence (cid:127) any mitigating prepon circumstances á trial and at post-trial hearings and derance of the evidence withstands constitu found no mitigating sufficiently facts sub- scrutiny.7 tional stantial leniency. to call for clearly Because ac- Id. cepted petitioner’s legally as claims relevant mitigation, just clearly

to the issue of majority and as The' makes much of this last sen- rejected tence,' those claims due to the lack of credi- contendihg unclear whether them, in support ble evidence I cannot high agreed with the sen- agree majority’s with the conclusion that the tencing court that no mitigating circum- Supreme mitigating Court had evi- present, stances were that mitigating cir- weigh appeal. dence to present cumstances were but were not suffi-

ciently to call leniency. substantial A fair Opinion B. The of the Arizona review record shows Arizona Su- Court preme Court did modify findings petitioner court’s had.failed appeal The record on shows the Arizona present, credible mitigating independently Court considered the Ricketts, circumstances. See v. 627 mitigating by evidence offered petitioner. 1334, (D.Ariz.1986). F.Supp. 1356 im- More The Court reviewed in detail the evidence of portantly, I petitioner don’t see can how com- drug by petitioner, intoxication offered and if plain the Arizona Supreme Court found agreed sentencing judge with the that there mitigating some 'force in the "evidence he no significant credible evidence of a im- presented. Surely if the Arizona pairment. Jeffers, 404, 428, State v. 135Ariz. credited marginal mitigating this 431, (1983). evi- 1105, 1129, 661 P.2d 1132 dence, the Court was capable discharging surveyed Court likewise the evidence con- its and cerning petitioner’s duty constitutional weigh relationship love-hate victim, against that evidence remaining aggrava- with and affirmed the trial court’s findings petitioner ting had not killed in the circumstances. The passion. heat of Id. The Arizona acknowledged obligated it was rejected petitioner’s Court also claim review, that he independent an undertake including truthfully maintained his innocence un- while independent reweighing aggrava- amytal. der the effects of sodium The Ari- ting mitigating circumstances. 135 Ariz. zona that both the noted 428, 431-32, 1129, at 661 at P.2d 1132-33. psychiatrist psychiatrist defense state The Arizona Court stated it was people agreed can lie while under the legal duty. consistent its with Id. influence of sodium amytal. Id. The Ari- 431-32, 661 at P.2d at 1132-33. State courts Court further stated: presumed are to follow the law. Walton v. Arizona, The trial 652-54, Court had this medical testimo- 497 U.S. 110 S.Ct. ny appellant’s 3047, 3057, before it to (1990); determine credi- 111 L.Ed.2d 511 Parker v. Contrary majority's (1991)); Ricketts, claims that the sen L.Ed.2d 812 Clark 958 F.2d tencing judge supreme (9th court should Cir.1992), 851 cert. sub nom. denied Clark v. expressly mitigating have discussed the Lewis,— U.S. —, 113 S.Ct. 121 L.Ed.2d "nonstatutoiy” mitigation, supra pp. as and long reviewing So aas federal court process require due does that the can discern from the record state court exhaustively analysis sentencer its document did indeed consider all evidence of Blodgett, each F.2d factor. Jeffries by petitioner, nothing required. fered ismore (9th 1993) (citing Cir. Parker v. Id. 731, 736-38, Dugger, 498 U.S. 111 S.Ct. at 736.

Dugger, 498 pre- overcomes record

Nothing in

sumption.8 trial through the travelled has case

This and the fed- of Arizona courts Today’s years. hold- thirteen system' for eral on the state obligations new

ing imposes in the Constitu- justification without courts ultimately to no record —and inor tion Arizona, carefully The courts avail. evidence, petitioner’s evaluated everyone else what this court' now tell

will judgment *of In the

knows: offered courts, whether con- years ago, thirteen

petitioner mitigat- nonstatutory statutory, or sidered leniency circumstances, not call leniency now. call for

then does dissent. respectfully

I America, STATES

UNITED

Plaintiff-Appellee, MEDRANO, Defendant-

Hector Cases). (Two Appellant 91-50556, 91-50616.

Nos. Appeals, Court of States

United Circuit.

Ninth Dec. Submitted

Argued and 16, 1993. Filed Feb.

Opinion 27, 1993. Sept.

Opinion Withdrawn 27, 1993. Sept.

Decided subsequent arguing the State of Arizona’s suggests the Arizona Su- majority 8. The penalty constituted evi- (cid:127) the death seek preme relevant decision to overlooked negotiations. plea right Petition- trial. This impermissible penalty in the form of on dence er, however; his presented evidence as bearing never argument has no familiar constitutional sentencing, not at the first factor—not adequately con- Arizona courts on whether appeal. resentencing, Petition- and not at the by pe- presented mitigating evidence sidered opening negotiations his plea er raised the appellate titioner. purpose limited but for the brief

Case Details

Case Name: Jimmie Wayne Jeffers v. Samuel Lewis, Director, Arizona Department of Corrections, Donald B. Wawrzaszek, Superintendent, Arizona State Prison

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 17, 1993

Citation: 5 F.3d 1199

Docket Number: 86-1840

Court Abbreviation: 9th Cir.