John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections

SCHROEDER, HUG, Before FERGUSON, ALARCON, PREGERSON, NORRIS, BOOCHEVER, NELSON, THOMPSON, BEEZER, BRUNETTI Judges. Circuit FERGUSON, Judge: Circuit petition for filed a Harvey Adamson John court corpus district habeas a writ basis, after exhausting all of his state remedies. tioned Adamson as to the factual He guilt, contends that his death sentence after and accepted plea guilty degree conviction degree of first second murder delayed violated murder. He accept- provisions various ance of the of the federal Constitu- provisions of the plea agreement, however, tion. The court district denied his until he petition, could three-judge appropriateness determine the panel of af- sen- court later, tence. days Four Ricketts, firmed the after Adamson v. having denial. re- presentence viewed the (9th Cir.1985). report, prelimi- 758 F.2d 441 That decision nary hearing transcript, and the other in- vacated when majority him, Judge formation before Birdsall con- judges of the circuit voted to have the cluded negotiated that the years term of appeal determined an en panel. banc appropriate accepted the sentence. panel This then reversed the district court jeopardy grounds double and directed years For following three the court’s ac- the issuance of a writ of corpus. habeas ceptance of plea Adamson’s provi- and the Ricketts, Adamson (9th 789 F.2d 722 sions of plea agreement, Adamson co- Cir.1985) (en banc). specifically We operated de- with authorities. On the basis of clined at that to time decide the other is- testimony, Adamson’s Dunlap Max and presented sues Id. petition. James Robison 725. were convicted of conspir- granted acy degree murder, and first Court certiorari and for which they reversed on the were each jeopardy double yearfe issue. sentenced to 29-30 Adamson, Ricketts v. and the death 1, penalty, respectively. While Dunlap and (1987). Robison convictions were areWe pending on appeal, required now to State moved to address the other have issues imposed. Adamson’s sentence Judge which were Bird- reserved for determination. sall sentenced agreed Adamson to the We affirm the term part, district court reverse years 48-49 on part, December 1978. and remand with instructions. On February 1980, the Arizona Su- preme I. Court reversed the convictions of Dunlap and Robison and remanded the Adamson was charged arrested and with cases for new trials. v. Dunlap, State the June bombing car murder in (1980); 608 P.2d 41 Bolles, Arizona of Donald an investigative Robison, 125 Ariz. 608 P.2d 44 reporter. A preliminary hearing was held When the State sought to secure Adam- on June at which justice time a son’s testimony retrials, in the Adamson’s peace probable found cause to hold lawyer responded with a letter to the State Adamson degree for first murder. In Jan- dated April which stated that his uary 1977, after selection for his trial client believed obligations that his under was underway, Adamson and the State en- plea agreement were terminated once plea tered agreement. into a Under the he was sentenced. The letter further stat- terms agreement, of the Adamson would ed that requested Adamson additional con- testify against other two individuals who sideration, including release, in exchange allegedly had him hired to commit the mur- for his testimony at the retrials. The der and plead would guilty to second de- State, in a letter to Adamson’s attorneys gree murder. exchange, Adamson dated April stated that it con- would receive a sentence of years 48-49 plea sidered agreement to still be in imprisonment, awith total incarceration effect. The State further wrote years time of 20 and months. Adamson’s comply refusal to with its terms January 15, 1977, On hearing held constituted a breach of agreement. It Superior before Judge Court Ben Birdsall. that, also stated due refusal, to this “the time, At that Judge Birdsall stated that he state may now proceedings institute neces- had reviewed the preliminary hearing tran- sary to carry into things effect those noted script, police reports, supplements, and wit- plea agreement in the that result from ness statements in the violation,” case. He ques- including reinstatement of the Supreme Court. Arizona possi- “its charge and degree murder first held that court 933. The P.2d at of death.” punishment ble testify, breached Adamson, to by refusing thereafter, and April Shortly had that he waived agreement and plea called the State April again on Id. at jeopardy. double defense of proceed pretrial at a as witness Adamson Adam- The court vacated retrials. Robison Dunlap and ing for sentence, judg- degree murder son’s second testimo previous his reconfirmed Adamson plea conviction, guilty ment killing, but assert the Bolles concerning ny charge. Fol- open murder reinstated when privilege Amendment Fifth ed a decision, offered to Adamson lowing that After ex crime. another about questioned agreement version accept the State’s April amining the letter State’s Dunlap Robison. testify against Myers de Judge Robert L. Superior offer and Adamson’s refused State compel Adamson motion the State’s nied degree charge of first with proceeded concluded Myers Judge testify. its ef- dropping apparently murder while assert legitimately could Adamson Dunlap and Robison.1 retry forts the State rights unless Amendment Fifth unsuccessfully sought federal Adamson prosecution. from immunity him granted to 28 pursuant U.S.C. corpus review Judge habeas sought review Although the unpub- court affirmed 2254. This compel motion § denial Myers’ disposition the district memorandum lished testify, Adamson Thereafter, petition. the of denial court’s of the accept jurisdiction to declined Court convict- was Adamson on October Supe Petition. Adamson Action Special A murder. degree by of first ed a Court, rior on November hearing held was sentencing (1980). 932, 935 14, 1980. 8, 1980, the State this, May on Following Birdsall, acting Judge hearing, At the charging Adamson new information a filed Anno- Statute Arizona Revised to pursuant Id. Adamson murder. degree first with 13-703,2 concluded (“A.R.S.”) in tated § Action the by Special challenged this hearing sentencing the court C.In the ever been Dunlap or have Robison 1. Neither or defendant’s to the defendant disclose shall murder. Bolles’ in connection with retried any presen- in contained material all counsel except full, prepared, been report, if one as follows: reads in tence statute 2. The re- determines as court the such material degree murder guilty first person of AA. protection of for the be withheld 13-1105, quired to or suffer death shall in § defined as information Any presentence depart- human life. custody of the imprisonment in the be con- shall the defendant life, withheld from possibili- without corrections ment of nonex- determining or the existence in completion sidered any until the ty basis of release sub- in included of the circumstances years istence if twenty-five calendar of service Any informa- section. of this F or G age section years of or more fifteen was the victim any circumstances to tion relevant was under years the victim thirty-five if may section G of this in subsection included age, years as determined of fifteen the prosecution or the either presented be provided in procedures the with accordance admissibility un- defendant, regardless of its through section. G of this B subsections of evidence governing admission the rules der guilty orof is found a defendant When B. ip- admissibility trials, of the but at criminal as defined degree murder guilty to first pleads any of the relevant to formation 13-1105, presided at the judge who the §in F of this in subsection set forth plea en- guilty the or before whom trial govern- rules governed the be shall section the tered, event of any judge in the other or at criminal of evidence ing admission the disqualifica- death, incapacity or resignation, trial, relating admitted Evidence trials. or presided at the trial who tion of mitigating circum- entered, aggravating or such to plea guilty before whom stances, reintro- without be considered hearing shall sentencing separate shall conduct The sentencing proceeding. ducing it at of or nonexistence existence determine per- be shall the defendant prosecution and F in subsections included the circumstances received any information to rebut section, mitted purpose of for the of this Gand opportuni- given fair hearing shall be imposed. the ty The be determining the sentence adequacy of argument present the court before hearing conducted shall of existence establish information alone. two ported circumstances were the finding (F)(5) of both the pecuni present. Those (1) circumstances were: ary gain aggravating circumstance and the the defendant committed the offense as “cruelty” portion (F)(6)’s of “heinous, cruel, receipt, consideration for the expecta- or in depraved” or circumstance. tion of receipt, of anything pecuni- of Adamson, ary value, 13-703(F)(5), (2) A.R.S. § 865, 104 defendant committed the offense in an “es- Adamson then institut cruel, pecially depraved heinous and man- present ed the federal corpus habeas pro ner,” 13-703(F)(6). Judge § Birdsall also ceeding. found that Adamson had not established The issues this (1) before court are: any existence of mitigating circum- seeking whether or imposing beyond stances pen- reasonable doubt. He alty following then sentenced Adamson’s Adamson to death. assertion of his right Fifth affirmed Amendment Adam- prose- constitutes sentence, son’s death holding that the judicial facts cutorial or vindictiveness, respec- adduced proceeding sup- tively; imposition whether of a death any of the circumstances included in subsec- receipt, tion of the anything of pecuniary F and G tions establishing of this section. The burden value. any the existence of of the cir- 6. The defendant committed the offense in cumstances included subsection heinous, F of especially depraved cruel or man- prosecution. section is on the burden ner. establishing the existence of the circumstanc- 7. The defendant committed the offense es set forth in subsection G of this custody section while corrections, department on the defendant. a law agency enforcement or D. The special court shall return a county verdict city jail. setting findings forth its as to the existence or 8. The defendant has been convicted nonexistence of each the circumstances homicides, set one or more other as defined in forth subsection F of this section and toas § which were during committed any the existence of of the circumstances in- commission of the offense. cluded in subsection G of this section. 9. The defendant was an adult at the time determining E. impose whether the offense was committed was as an tried of imprisonment sentence or life death with- and adult the victim was years under fifteen possibility out any release of age. basis until of twenty-five defendant has served G.Mitigating calendar any circumstances shall be years if the was years victim or fifteen more proffered by factors the defendant or the state age thirty-five of years or calendar if the vic- which are determining in relevant to whether years tim age, was under fifteen of impose court death, a sentence less including than shall take into account the any aspect and character, of the pro- defendant’s mitigating circumstances included in pensities subsec- or any record and of the circum- F tions and G of impose this section and shall offense, stances of the including but not limit- a sentence of if death the court finds one or following: toed more circumstances enu- 1. The capacity defendant’s appreciate to in merated F subsection of this section wrongfulness and of his conduct or con- to there are mitigating no his requirements form to conduct of law sufficiently substantial to leniency. call for significantly impaired, but not so im- F. Aggravating circumstances to be paired con- as to constitute prosecu- a defense to shall sidered following: tion. 1. The defendant been convicted of 2. The defendant was under and unusual another offense in United duress, States for which substantial although not such as to under a imprison- law sentence life of prosecution. constitute defense to imposable. ment or death was 3. The legally defendant was accountable 2. The previously defendant was convicted for the conduct of provi- another under the felony of a involving the United States § sions of participation but his use or threat of person. minor, violence on another relatively although not so minor to 3. In the commission of the offense the prosecution. constitute a defense to knowingly grave defendant created a of risk 4. The defendant could not reasonably person death another persons or in addi- have foreseen that his conduct in the course tion of victim the offense. of commission of the offense for which procured The defendant the commis- cause, the defendant was convicted would by sion payment, promise offense grave causing, would create a risk of payment, anything pecuniary value. person. another 5. The defendant committed the offense as age. 5. The defendant’s consideration receipt, for the expecta- or in 1983-84). (Supp. § A.R.S. 13-703 by judge (1974) sentence earlier found who L.Ed.2d 628 (extending the imprisonment appropriate penalty an for rule in protect Pearce to the accused Eighth the same acts violated the Amend- against prosecutorial vindictiveness). prohibition against arbitrary ment and ca- Adamson contends the 1980 decisions to pricious cases; (3) capital impose seek penalty the death against whether the Arizona statute violates the him for the same acts that earlier merited a right Sixth Amendment to a determi- years term of were vindictively motivated. by nation of the elements of an offense We find the evidence insufficient to show requiring to make factual find- that Adamson’s death sentence was vindic- circumstances; ings regarding aggravating tively imposed by the sentencing judge. (4) aggravat- whether the Arizona statute’s reject We thus judicial claim of vindic- ing factor that the offense was committed merit, however, tiveness.3 We do find heinous, especially depraved an cruel or his claim that the circumstances surround- unconstitutionally vague manner is as con- ing the State’s decision to seek the death Court; (5) strued the Arizona presumption raise a prosecutori- the Arizona whether statute violates the al vindictiveness sufficient require Eighth by precluding meaning- Amendment evidentiary hearing on the matter.4 ful consideration of all evidence by imposing death; presumption showing No actual of malice or retali (6) atory whether the necessary admission of certain motive is to assert a vindic prosecution evidence at trial violated the Confrontation tive claim. Blackledge, 417 Clause. 2102; atU.S. 94 S.Ct. at see also Unit Burt, (9th ed States v. 619 F.2d II. Cir.1980). Rather, vindictiveness will be presumed when the circumstances sur The Due Process Clause of the rounding prosecutorial decision at issue Fourteenth guarantees Amendment appearance create the of vindictiveness.5 against judicial prosecutorial vindic Robison, United Thus, States v. 644 F.2d may tiveness. a defendant not be (9th Cir.1981); penalized see also United imposition States of a harsher (9th Griffin, Cir.), 617 F.2d simply exercising right sentence 863, 101 appeal. Pearce, North Carolina v. (mere 711, 723-26, 2072, 2079-81, appearance L.Ed.2d 80 vin may give Similarly, prosecutor presumption dictiveness rise to charges

cannot increase the sufficient to against process a de establish due viola tion); Groves, fendant in retaliation for the defendant’s United States v. 571 F.2d 450, (“it statutory right. (9th Cir.1978) assertion of a Blackledge is the appear Perry, 417 U.S. 94 S.Ct. ance rather than vindictiveness vindic- find, however, imposition 3. We prosecution Dunlap do that the to abandon and Robison penalty by sentencing judge the death in favor of Adamson” relates to the issues of constitutionally impermissible. infra, prosecutorial judicial See sec- vindictiveness and tion III. by Appeals thus "should be decided the Court of remand"). reject argument 4. We the State’s that the Su- preme regarding jeopar- Supreme recognized Court’s decision double 5.The Court in Pearce Adamson, dy difficulty in Ricketts v. showing 107 S.Ct. extreme the existence of (1987), disposed of Adam- an actual vindictive motive in an individual prosecution son’s vindictive claim. The issue case. U.S. 89 S.Ct. at 2081. The majority opinion, was not discussed in the part be- held thus that vindictiveness on the by sentencing judge presumed cause it was never reached the en banc of the can be when- majority previous in the decision. harshly See Adamson ever a defendant is sentenced more af- Ricketts, (9th (en 1986) objective 789 F.2d 722 Cir. ter retrial and no reasons for the in- banc). Indeed, only Later, given. mention of vindictive creased sentence are in Black- prosecution Supreme opinion ledge, in holding regarding Court's the Court extended the Adamson, presumed in the dissent. See 107 S.Ct. involving at 2692 vindictiveness situations (Brennan, J., dissenting) (noting n. prosecutorial the "curi- a likelihood of retaliation. See yet 27-28, unexplained ous and as decision of the 417 U.S. at State 94 S.Ct. at 2102. tiveness, controls”) fact, in (empha which 88 L.Ed.2d 103 presumption original). (1985) (likelihood sis in A arises prosecutorial abuse is very whenever “it reflects the real likeli diminished separate sovereign when a part hood of actual vindictiveness” on the charges); Robison, brings the increased United States v. Mar prosecution. (vindictive 644 F.2d at 1272 prosecution tinez, (9th Cir.1986) 785 F.2d claim weakened when different facts and (quoting Gallegos-Curiel, United States v. sovereigns involved). different im- Most (9th Cir.1982)). 681 F.2d portantly, the decision to file the increased charges directly followed Adamson’s asser- surrounding The tion right against of his constitutional self- penalty State’s decision to seek the death Blackledge, See incrimination.6 clearly for Adamson reflect the real likeli 2102; 94 S.Ct. at United States v. hood of actual give vindictiveness and thus Shaw, (9th Cir.1981) 655 F.2d 171-72 presumption rise to a of vindictiveness. (appearance of vindictiveness shown sought penalty against State prosecutor increasing severity charges very Adamson for the same conduct for after the protected defendant exercised a years which it had three earlier found a right). These ap- circumstances create the charge lesser and a sentence of 48-49 pearance State, Martinez, “faced with See years appropriate. a di- 785 F.2d result, sappointing (presumption ‘up at 669 so as to of vindictiveness act[ed] Martinez, ante’ for the raised defendant.”7 charges when increased arise Thus, F.2d at 669. presumption from the operative same nucleus of of vindic- facts Robison, Id.; charge); as the earlier tiveness is warranted in 644 F.2d this case.8 Shaw, see also (prosecutor’s attempt at 1272-73 655 F.2d (prima to seek a at 171 facie heavier for the same acts case of govern- is inher vindictiveness created when ently suspect). sovereign upped The same ment by vacating the ante guilty the same plea set of facts were involved in protected both retaliation for exercise of Ballester, Robison, United States v. decisions. right); (stating 644 F.2d at 1273 it Cf. denied, (9th Cir.), cert. 763 F.2d prosecution’s is the “attempt or threat argues 6. The State that it misplaced. made the decision to assertion is While Goodwin did lim penalty against seek the death Adamson before application prosecution of vindictive right he had asserted his Fifth Amendment involving pretrial procedures claims in cases testify against Dunlap. refused to Robison and plea negotiations, the Court there did not hold State, however, consistently has not assert- prosecution that vindictive can never occur in a Moreover, position. ed this its actions contra- pretrial setting. recognized The Court in fact stance, try dict this since the State continued to appropriate might "that a defendant case compel testimony Adamson’s after it sent him prove objectively prosecutor’s charging that the April only the letter on 1980. It was after the punish decision was motivated a desire to Judge Arizona Myers’ Court refused to review something plainly him for that the law allowed compel denial of the motion to Adamson (foot him to do.” Id. at 102 S.Ct. at 2494 testify legal to lenge it had no further chal- —when omitted); Banks, note see also United States v. right to Adamson’s constitutional —that (9th Cir.1982), 682 F.2d 841 charges. the State filed the increased Moreover, explicitly rejected Adam- that, (suggesting though the Court in Goodwin son’s offer—made after the Arizona apply presumption refused to of vindictive rejected interpretation plea Court agreement’s pretrial prosecutor ness to the actions of the testify against terms—to Robison case, possibility it did not foreclose the Dunlap original and agreement. under the terms of the circumstances). other This circuit has also stat Instead, pur- the State chose to still ed, post-Goodwin, presumption that can penalty letting sue the death for Adamson while pretrial prosecutorial arise from conduct. See Dunlap go unpun- Robison and untried and McWilliams, United States v. 730 F.2d only ished. These facts increase the likelihood (9th Cir.1984) (filing of initial indictment appear- of actual vindictiveness and add to the provide prosecution can basis of vindictive improper surrounding ance of an motive claim); Heldt, see also United States v. 745 F.2d try State’s decision to Adamson alone. (9th Cir.1984) (suggesting increased charges presump- response suppress 8. The State's assertion that there is no filed in to motion to Moreover, is provide tion here incorrect. its reliance on prosecution could basis for vindictive Goodwin, United States v. claim). support for that equally unpersuasive. discretion bringing or more new ‘up the ante’ prosecution doctrine is “a limit response in to the exercise vindictive charges serious discretion,.and goes prosecutorial the due rights that violates protected of De very authority prosecutor to hale the guarantee”); States process United (9th Cir.), place.” Marco, into court in the first F.2d defendant Thus, F.2d at while Griffin, 1345-46. (1977) (constitutionally imper prosecutor great discretion to choose L.Ed.2d a up the ante to government partic charges bring against missible for it which will exercising his from discourage defendant, signifi defendant there is ‘a ular “when venue). change of right to possibility may that such discretion cant a vindictive mo have been exercised with presumption of vindictive Once the prose purpose,’ the reasons for the tive or raised, shifts to the the burden ness is decision to the stakes cutor’s increase evi by presenting prosecution to rebut it ” appear.’ ‘must made to the accused or interven independent reasons dence of (quoting Ruesga-Martinez, 1346-47 that demonstrate ing circumstances which case, 1369). In Adamson’s 534 F.2d at was motivated prosecutor’s decision significant possibility of actua.1 there is a Gallegos-Curiel, legitimate purpose. surrounding the State’s deci vindictiveness 1167; v. Thurn F.2d at United States penalty, coupled with to seek the death sion Cir.1977) (9th huber, F.2d legitimate reasons apparent absence proving that (state “heavy has a burden justify it. alleged severity of the any increase in the by a vindictive not charges was motivated support us do not The facts before also motive”) v. Rues (quoting United States charging finding decision State’s (9th 1367, 1369 Cir. ga-Martinez, F.2d as- prosecutor’s “the normal resulted from omitted)). Thus, the 1976) (footnote prosecu- the societal interest sessment of rein presumption that its must rebut Goodwin, n. 457 U.S. at 380 tion.” degree murder of the first statement agree we at 2492 n. While penalty charge pursuit the death compelling legitimate the State has improperly motivat against Adamson was prosecuting the punishing interest done so. To date it has ed. Bolles, interest was murder of Donald its the State made present at the time arguments the State None of An inter- bargain with Adamson. original pre to rebut presents are sufficient ap- punishing all concerned was est in The State’s sumption of vindictiveness. entering for the State’s parent motivation contention, upped the “no one first agree- original agreement. That into degree simply filed first ante” because of a term resulted a sentence ment agreement rein charges plea as the murder their con- Adamson years for and—before do, it to whol provisions allowed statement imposition victions were overturned —the prosecution point. Vindictive ly misses Dunlap. for Robison and penalty the death where always involve cases interest how the State’s We fail to see power.9 acting its within prosecution Bolles’ with punishing those connected however, cases, is wheth in such The issue later, by advanced, years three murder was improper power was of that the exercise er than all one rather seeking penalize Thus, the State just because motivated. ly three. the death could seek in this case the issue does not resolve Adamson

against argument that Furthermore, the State’s with a vindictive it did so of whether against Adamson charges it increased the retaliatory motive. destroyed “once credibility was because non-negotiable de- he made his famous argument that its ac- related The State’s actions. by its own is contradicted prosecutorial mands” sphere fall within tions charges itself be bringing would power unauthorized to prosecution not have the If the did 9. charges, no need to bring prohibited. would be there question its motives—the act reach try compel to testimony largely, It continued to Adamson to his entirely, if not testify following occasions responsible on several re- for their convictions. He also ceipt April of the 1980 letter. In addi- agreed, as soon as the tion, position by is undermined State’s rejected interpretation his pro- coopera- extensive record of Adamson’s plea agreement, visions of the testify to tion with state and federal authorities. Moreover, the retrial. since the Arizona Adamson had testified for hundreds of Supreme Court decision made clear that the cooperated hours and in more than two demands, State could refuse Adamson’s he interrogation during hundred sessions had no further testify- incentive for not year period plea agree- three between ing.13 subsequent ment and his claim that he had Because we find that Adamson has obligations under fulfilled his the terms of made showing presump an initial to raise a agreement. There is no evidence—nor tion of vindictiveness that the State not argue any does the State even —that rebutted, thus far we hold that the district credibly. time less than he testified denying court erred in request Adamson’s Dunlap earlier convictions of Robison and evidentiary hearing for an on the matter. support contrary fact conclusion. We therefore reverse the district court and find We also no merit the State’s claim remand for hearing.14 such a sought penalty against the death might Adamson because Adamson refuse III. testify at a retrial of Robison and Dun- judge originally Given that the de lap. The defends its actions on the termined that a sentence of years 48-49 grounds that such a refusal would be “the appropriate penalty was an for the acts against any definitive end of case Robison murder, constituting the we also hold that Dunlap” jeopardy since double would judge’s subsequent imposition however, Nothing, attach.10 could more penalty following Adamson’s definitively against the case trial end Robison arbitrary in Dunlap ending Eighth violation of the than Adamson’s life silencing key Fourteenth prosecution forever the Amendments. against witness them.11 The death qualitatively differs addition, any there from was little indication other sentence. California Ramos, testify.12 998-99, that Adamson would refuse to proved willingness testify He (1983); at the original Dunlap, trial of Robison and where Stephens, Zant v. 462 why testify. The State offers no reason as to sentencing judge recognized Adam- Even the facing penal- son would choose to risk the death cooperation past, Adamson’s extensive in the ty give Dunlap in order to Robison and and his intention to continue to do so in the jeopardy protection. benefits of double future. argument jury 11. As for the State’s evidentiary 14.While the dissent fears that an perceive mercenary would making non-negotiable Adamson as a hearing would somehow allow Adamson to demands, we see no dif- "escape” provisions the reinstatement and thus ference between these demands and Adamson’s agreement meaningless,” "render such a original agreement whereby with the State he hearing way compromises promise integrity in no testify bargain used his life. for his plea agreement, plea agreements Adamson’s generally. plea States remain free to enforce testify 12. Failure to is a risk inherent whenever agreements provisions via enforcement autho- testimony is derived from an immunized wit- rizing filing charges, including of increased pursuant plea agreement. ness or to a There is death-eligible charges, following a defendant’s any guarantee testify never that the witness will do, may breach. What states and what truthfully. —or that the witness will do so appearances indicate was done in Adamson’s guarantee initially State had no such when it case, however, pursue is to a sentence under the plea agreement made the with Adamson. guise plea enforcement when animated testify 13. That improper Adamson continued to in other motives. cases, even after he was convicted murder, first-degree proof willingness of his

1021 2746, 2733, (1983); agreement. 77 L.Ed.2d 235 Nistor, S.Ct. See State v. De 143 Florida, 782, 797, 102 407, Enmund v. 458 U.S. 237, Ariz. 694 P.2d 241 3368, 3377, (1982); S.Ct. judge complete therefore has authority Alabama, 625, 637, Beck v. 447 U.S. 100 reject the negotiated sentence by the 2382, 2389, (1980); 392 S.Ct. 65 L.Ed.2d parties. 17.4(d); See Ariz.R.Crim.P. 280, Carolina, v. North Woodson Court, Superior 209, Williams v. 130 Ariz. 304, 2978, 2991, 49 L.Ed.2d 944 210, 497, (1981); (Frank) 635 P.2d 498 (1976). Thus, “greater must accord a we Superior Court, 210, Smith 130 Ariz. degree scrutiny” capital sentencing (1981); 500 see also De Ramos, determinations. 463 U.S. at Nistor, 143 Ariz. at 694 P.2d at 241. 103 at 3452. S.Ct. accepting plea agreement, Even after pass scrutiny To constitutional under this judge may reject stipulated the sentence if standard, heightened the death he or she inappropriate.15 finds it De Ni applied arbitrary must not be in an stor, 241; 143 Ariz. at 694 P.2d at see capricious Gregg Georgia, manner. 428 (Frank) Smith, also 130 Ariz. at 635 153, 188, 2909, 2932, S.Ct. L.Ed. P.2d at 500. (1976). Rather, 2d 859 there must “an be case, judge Adamson’s held two determination’ of whether ‘individualized hearings and reviewed extensive informa- question the defendant in should exe be tion order to determine whether he cuted, on of the indi based ‘the character accept plea would negoti- and sentence vidual and circumstances of ” ated between Adamson and the State. At crime.’ Maryland, Booth v. 15, 1977, hearing, January the first 2529, 2532, S.Ct. judge stated that he had read and exam- Zant, (quoting 462 U.S. at preliminary hearing ined the transcript, po- (emphasis original)). at 2744 A S.Ct. reports lice supplements, and the may imposed sentence of death writ- un there is a ten statements of judge less determination that death is witnesses. The appropriate punishment specific in the also elicited additional information from Woodson, case under consideration. regarding Adamson his role in Bolles’ mur- “[A]ny U.S. at at 2991. deci der “to further establish a factual basis” impose ‘be, sion to the death sentence must guilty plea. accepted for the He then be, appear based on reason rather plea guilty degree Adamson’s to second ” Booth, caprice than or emotion.’ 107 murder, postponed acceptance but of the (quoting Florida, at 2536 Gardner v. stipulated pending sentence review and re- 51 ceipt presentence report. of the (1977)(opinion Stevens, J.)). later, hearing days At the next four capital or not á in Whether sentence is judge indicated that he had now considered volved, sentencing in Arizona the function presentence report, the matters in the parties plea does not lie with the to a file, preliminary hearing transcript, agreement primarily but “rests with the plea agreement, proceedings and the at the Judge, obligation whose ultimate is to im previous hearing. Having reviewed and sentence_” pose appropriate Dom information, judge considered all of this Meehan, inguez v. accepted year proposed the 48-49 sentence (quoting Peo (App.1983) agreement. plea in the Farrar, ple v. 52 N.Y.2d 437 N.Y.S.2d judge’s acceptance of Adamson’s ne- (1981)), approved, 419 N.E.2d 864 gotiated guilty plea degree to second mur- (1984). Thus, 681 P.2d 911 judicial der reflected his and sentence thus regarding discretion wide accorded a accept “appropri- determination that such was an reject plea whether to extends sentencing provisions plea punishment ate” for all of Adamson’s ac- If, however, 17.4(e); judge rejects guilty plea. De draw the Ariz.R.Crim.P. provisions plea agreement, Nistor, he or she P.2d at 241. 143 Ariz. at give opportunity must the defendant the to with- degree murder un- fenced tions. Because second to death because he violated a con- penalty tract. der Arizona law carries a maximum imprisonment, judge’s accept- of life the that, judge The State counters when the agreement plea ance of Adamson’s also originally sentenced Adamson to a term of signified his that Adamson would belief years, power he had no anything to do appropriately punished by prison sen- accept reject plea, other than to or the and

tence rather than death. thus no authority to examine mitigating argument factors. This has Notwithstanding previous determi- indicated, already no merit. As we have nation, 1980, following in November Adam- sentencing judge under Arizona the law subsequent and conviction for son’s trial power accept plea, has the reject the the murder, judge imposed the Bolles’ the plea, accept plea yet reject nego- the the penalty the same conduct for for tiated sentence if it is determined that it previously prison which he had found a appropriate.17 See, Nistor, e.g., was not De “appropriate.” term No information was 143 Ariz. at 694 P.2d at 241. The justify imposition cited to the of the death that, determining record here shows in penalty that had been available at the accept plea pro- whether to the and the Indeed, sentencing hearing. ag- first the posed years sentence of appropri- 48-49 gravating and ate, judge the considered the same informa- in sentencing findings listed were subsequently ag- tion that he used to find based on the same judge facts that the had gravating justi- circumstances sufficient to years used three earlier to determine that a fy a sentence of death. prison “appropriate” penalty term was the Thus, for Adamson.16 there is no evidence The attempts justify dissent that the death by concluding sentence was “based on Adamson’s death sentence caprice that, light reason rather than or emotion.” provi of the reinstatement Gardner, 430 U.S. at plea agreement, 97 S.Ct. at 1204. sions of the such a sen appears, It simply logical therefore based on the record tence predicta was and us, judge arbitrarily before that the acted testify. ble result of his refusal to What imposing penalty the death may propriety Adamson’s ever be said for the in only change creasing case. Since the prison following circum- sentences imposition pris- stances between the plea agreement, breach of a the imposition imposition on sentence and the of the death of the death for such circumstanc sentence was that Adamson principle breached the es offends the constitutional plea agreement, emerges inescap- capital there require determinations special See, Ramos, able conclusion that Adamson sen- e.g., was treatment. 16. The preliminary hearing transcript any suggestion contained 17. The record refutes that the (1) $10,000 testimony paid Adamson judge thought power reject he had no (2) bombing; procured compo- for the Adamson stipulated accepted sentence once he had Adam- bomb; (3) constructing nents for Bolles’ car plea. judge reject son’s knew that he could (4) severely damaged by explosion; sentence, negotiated apparently con- pieces area around the car was strewn with possibility. specifically sidered the He in- vehicles, glass, lights, wiring, electrical blood January plea formed Adamson at the tissue; (5) large pool lay and meat directly of blood hearing that "the Court shall not be bound door; (Bolles’) (6) beneath the driver’s any provision plea agreement regarding in the bleeding badly legs Bolles was mangled and his were the sentence.” He also advised that Adamson (alternatively and burned described as judge plea ultimately could withdraw his if the torn); (7) shattered and Bolles was conscious rejected inappropriate the sentence as or unsat- (8) speaking bombing; after the Bolles addition, isfactory. although accepted In he responsible identified Adamson as for time, plea accept at that refused to bombing; multiple inju- Bolles died of Instead, simultaneously the sentence. he de- means, bombing.” ries caused addition, "violent layed this decision until after he had reviewed testimony plea Adamson’s at the hear- necessary all of the information for a determi- ing procured placed showed that he had negotiated prison Bolles, nation as to whether the term bomb with the intent to kill and that appropriate penalty days was an explo- Adamson. Bolles did not die until 11 after the sion. sanction; Mar 9,n. United States v. at 3451-52 criminal & U.S. at 998-99 Co., Supply Linen tin & agreement the dis- n. 9. While with death sentence fol- sent that Adamson’s L.Ed.2d breach, dis- we do not share the lowed his recognized predictability this sort of sent’s view right defendant’s to a trial and the passes muster. When the constitutional factfinding responsibilities concomitant plea predictable result of the breach of a jury greater protection the merit as the imposition bargain penalty, death the is the See, e.g., potential punishment increases. penalty arbitrary is violation of that Duncan, 391 U.S. at 88 S.Ct. at re- The Constitution of Constitution. (jury constitutionally trial not mandat individualized of quires an determination offenses; petty pun ed for executed, seriousness of a defendant should be whether attaches). right ishment determines when prediction and not a of death. stated, previously As we have judge trial acted We hold that state repeatedly Court has held that the death imposing penalty. the death arbitrarily penalty qualitatively different from all district court and remand We reverse the punishments heightened other and that grant instructions to to that court with scrutiny sentencing of death decisions is State, corpus unless the writ of habeas Thus, required. penalty when the death time, a resentences within reasonable implicated particularly courts must care be than death. Adamson to a sentence other prevent infringement ful to of Sixth rights. Amendment IV. dangers government op- To avoid the of Ari also contends that the

Adamson pression recognized in Duncan and re- imposing statutory scheme for zona cases, in later there must strict erroneously of affirmed penalty death lists elements separation guilt of by determined determinations of or the offense as factors to be depriving (factfinding) thus him of innocence and determinations judge, punishment (sentencing). right jury appropriate to a decision on the elements of the crime in violation of the Sixth To otherwise blur the distinctions between of the agree. We concepts Fourteenth Amendments. those would result the ultimate by tyranny feared the Founders and con- right jury roots of the The historic demned Duncan: power by the unchecked backdrop to this provide trial an essential government will. of the to execute at The Framers of the Bill of discussion. Rights included the Sixth Amendment’s right jury trial as an guarantee of A. op protection against government essential guilty found of first de- Adamson was power, of unchecked so

pression. “Fear Arizona’s gree by jury. murder Since and Federal typical of our State Govern judge requires statute that a respects, expression found ments other one circumstance find at least upon criminal law in this insistence in the defendant convicted of first de- before a participation in the community determina however, gree death-eligible, murder is innocence.” Duncan v. guilt tion of or him Louisiana, qualify itself did not jury’s verdict Accordingly, Adam- for a death sentence. The corner argues the death sentence son right to have protection is the stone of imposed only after he had been found jury determine the existence “capi- guilty higher degree necessary guilt to determine or inno facts murder — finding judge virtue of the given Only by maintain tal cence of a crime. murder” — factors, aggra- specifically, factfinding function two additional ing integrity of the A.R.S. 13- vating jury “stand the accused §§ does the between (a gain”) 703(F)(5) “pecuniary arbitrary motive potentially abusive and a (murder 13-703(F)(6) commit- (“(F)(5)”), and is in command Government heinous, “especially ted in an cruel or de- manner) (“(F)(6)”). praved” Adamson thus From 1901 placed to 1973 Arizona concludes that because a made these sentencing decision of imprison- “death or

findings deprived he was of his Sixth ment” on jury:18 right Amendment to have a decide the person guilty A of murder in the first guilt logic facts of his or innocence. The degree shall suffer imprison- death or however, argument, prison life, Adamson’s is sound ment in the state at the jury trying person discretion only if the statutory aggravating therewith, charged upon plea actually circumstances are elements of a guilty, the pun- court shall determine the distinct crime. ishment. requires Constitution that the state Nielsen, prove beyond a reasonable doubt all ele (quoting A.R.S. of 1956 ments of the offense with which the de 13-453(A)) added); (emphasis see § also charged. fendant is Winship, In re 397 13-453; A.R.S. of 1955 Ariz.Code of 1939 § 358, 361, 1068, 1071, U.S. 90 S.Ct. 25 L.Ed. 43-2903; Rev.Code of Ariz. of § 1928 (1970). 2d parameters 368 Yet the of what 4585; 1913, A.R.S. of 13 Penal Code § constitutes “element”—so as to fall 173; Ariz.Penal Code of 1901 174. In § § jury’s within the factfinding responsibili addition, Arizona allocated the burden of ty process elusive. A line of due proof of the elements of the homicide—in- —remain considering cases such cluding contours has failed proving the burden of mitigation— produce prosecution between the guidelines. concrete and defendant at McMil Cf. trial: Pennsylvania, 79, 106 lan v. 477 U.S. S.Ct. Upon murder, 2411, a trial for 2417, (1986)(Court commis- 91 L.Ed.2d 67 sion of the homicide the defendant attempted “never to define precisely the being proved, proving the burden of cir- constitutional limits the extent [of] mitigation cumstances of justify or that process which due forbids the reallocation it, him, or excuse upon devolves unless or proof reduction of of burdens in criminal proof part on the prosecution cases, and today....”); do so see do[es] tends to show that the crime committed York, 197, also Patterson v. New 432 U.S. only amounts manslaughter, or that 2319, 97 (1977); S.Ct. 53 L.Ed.2d 281 Mul justifiable the defendant was or excusa- Wilbur, 684, laney v. 421 U.S. 95 S.Ct. ble. (1975); 44 L.Ed.2d 508 In re Win 938; Ariz.Penal of 1901 A.R.S. Code § ship, 397 U.S. 90 S.Ct. 25 1046; Penal Code Rev.Code § (1969). find, however, We 5050; Ariz.Code Ariz. of § § a framework analysis emerges for from 44-1814; 13-454; A.R.S. of A.R.S. of 1955§ Thus, assessing these cases. Adamson’s 1956 13-454. § claim, (1) we legislative history examine response to Furman v. Geor statutes; (2) of Arizona’s penalty gia, 33 L.Ed.2d played by aggravating actual role circum (1972) (death penalty may not be im stances under Arizona’s revised statute posed arbitrarily capriciously), the Arizo 13-703; (3) application of McMil § legislature adopted na procedure a new lan Pennsylvania, Court’s appropriate determination of sent pronouncement most recent on the distinc ence.19 responsibility for deciding tion between elements and whether a defendant would receive a sen factors, to this case. tence of life or death was taken from the period For a brief legislature 18. between 19. "After Furman the amended the penalty. abolished Arizona Sess.Laws, the death criminal code.... The amended statute was Measures, Initiative and Referendum intended to remove the deficiencies described § at 4-5. The death was then reen- Murphy, the Furman decision." State v. changes acted and remained with minor until 416, 417, (1976). reassigned judge usurp jury factfinding who jury20 responsibilities. separate, statutorily man- presided over a legislature’s a “state While definition of dated, hearing.21 aggravation-mitigation the elements of the usually offense is dis- legislature similarly removed the con- McMillan, positive,” 477 U.S. at mitigating sideration of its regard decision in this jury from the at trial and allocated to subject proscription under the Due Pro sentencing.22 This abbreviated cess Clause if it principle “offends some legislative history thus reveals that for at justice so rooted in the traditions and con legislature years, least 72 the Arizona be- people science of our so as to be ranked as (1) jury should decide between life lieved Randall, Speiser fundamental.” (2) factors, or death and well establishing higher degrees as elements McMillan, (quoted murder, proved disproved at had to be 2416). 106 S.Ct. at The Sixth trial the trier-of-fact.23 before right jury Amendment to have a determine analysis, If the end of the this were whether proven every the State has ele however, argument Adamson’s fail. would charged ment of the offense is such a previously Simply because Arizona as Thus, principle. scrutinizing examination signed decisionmaking responsibility to statutory of the Arizona scheme is neces course, mean, jury does not that the sary assignment to determine if its of re Spazi State must continue to do so. Cf. sponsibilities violates fundamental 464, 104 Florida, ano v. right to a trial. How ever, the Court has not hesitated 2. sentencing procedures to invalidate when code, Under Arizona’s all revised murder process rights. the violates constitutional capital is not murder. Since See, e.g., 95 Mullaney, U.S. at required that a death sentence before (states may simply “rede S.Ct. may judge imposed the trial must find fine the elements that constitute different beyond a reasonable doubt that at least one crimes, characterizing them as factors that statutory aggravating circumstance exi solely punishment”). on the extent of bear formally sts.24 While Arizona has subdi recognize Thus we that the mere use of categories vided murder into at least four guilt” labels such as “determinations of murder, degree degree —first second mur “sentencing” compartmentalize and the der, manslaughter negligent and homi judge jury, ne functions does not appears aggravating gate very cide 25—it that circum possibility the real that what are “sentencing” may in operate called decisions fact stances in fact to create an addi 20. Arizona, tune, Legis- passion, provocation, See 1973 Session Laws of 31st heat of and "when lature, Regular (deleting killing 1st Sess. Ch. 138 2 the is not done in a cruel and unusual § 13-460; statute, portion delegates of the manner.” See A.R.S. of 1955 § or, 43-2906; jury upon Code of Rev.Code of Ariz. of § decision to the discretion of the 4588; court). plea guilty, A.R.S. of Penal Code § 178; Ariz.Penal Code of 1901 179. § § 21. See 1973 Session Laws of Arizona, Legis- 31st 24. The lature, Regular (adding specific aggravating mitigat- Ch. 1st Sess. 5§ list of judicial sentencing utilizing aggravating ing scheme forth in from § circumstances —set 13-454 circumstances). mitigating 1973-78 and in 13-703 from 1978 to the § present been since The modified —has 22. See 1973 Session Laws of Arizona, procedure aggravating Legis- basic and the two cir- 31st case, however, lature, Regular (repealing cumstances found in Adamson’s 1st Ch. 4§ Sess. have remained the same since that time. Arizo- the entire statute that allocated the burden of trial). currently aggravating mitigating na nine proof lists circumstanc- factors at es at least one of which must be found before 23. Prior to the 1973 penalty option. enactments, the death becomes an jury had always been able to consider "excuses” to de- of homicide of 25. A.R.S. §§ 13-1105 murder), (first against, degree degree fend or lessen the 13- (second murder), (man- guilty. degree could be which Among defendant found 13-1103 accident, homicide). slaughter), (negligent those "excuses” were: misfor- 13-1102 Rumsey, of murder. While the stat Arizona v. category tional (“aggravating circum ute’s nomenclature If S.Ct. stances”) they mere suggests are factors prosecution prove is unable to the exist in his or her determina guiding judge circumstance, single aggravating ence of a penalty, appropriate tion all other of the element, proving like not an essential aggravating cir indicators confirm Po put defendant cannot be to death. Cf. elements neces cumstances are additional Arizona, land finding guilty a defendant is sary for a 1749, 1755-56, 90 L.Ed.2d 123 capital offense of murd distinctive (Court inquiry as framed the relevant Finding aggravating er.26 sentencing judge or the re “whether only crime in Arizona for results prose viewing court has ‘decid[ed] may receive a death which a defendant proved its case’ for the death cution has not sentence. petition penalty ‘acquitted’ and hence has An “circumstance” which 212, 104 Rumsey, 467 U.S. at ers”); “death-eligible” elevates a murder to a (where findings of fact at phase, remarkably murder in the defendant, he hearing were all favorable to mirrors the attributes of an essential ele- penalty). “acquitted” of the death during guilt phase ment of the offense Moreover, to determine the existence of crime, of a of a trial. Like an element circumstances at issue aggravating circumstance the Arizona requires subjective complex here in- prosecutor scheme informs the what facts quiries into the defendant’s state of mind proven The must be to obtain conviction. before, during perpetration and after the proven beyond a rea- circumstance must be (F)(5)finding obligates the crime.27 An adversarial, hearing sonable doubt. judge draw conclusions —not —to argument prosecution’s oral and the with regarding whether the defendant had the governed by presentation of evidence “expectation receipt, anything presiding of evidence. The tri- usual rules 13-703(F)(5) pecuniary value.” A.R.S. § findings on the al must make exist- added). (F)(6) (emphasis factor— ence or nonexistence of each of the statu- whether the offense was committed in an tory aggravating and circum- heinous, “especially depraved cruel or man- stances. If the finds an requires circumstance, assessments of “the mental the burden then shifts to the ner” — state and attitude of perpetrator put on defendant who must sufficient evi- in mitigation penalty dence of or the death reflected his words and actions” at the Gretzler, 13-703; see also State v. imposed. be A.R.S. time of the offense. will § Poulos, Court, explains Capital 26. One commentator that those states The Punishment which, Furman, graded after murder into first and the Substantive Criminal Law: The Rise degree "special and second with enumerated Punishment, Mandatory Capital and Fall had, fact, circumstances" created an addition- (1986) (footnote omitted) Ariz.L.Rev. al level of murder: Poulos, (emphasis original) [hereinafter Man- statutes, however, post-Furman The did not datory Capital Punishment]. offenses, they purport to create new nor did degree purport to divide murder or even first invalidated, Oregon Supreme The 27. Court on a capital non-capital murder into a first rationale, provision Oregon cap- similar a of the degree Formally, legisla- murder offense. punishment permitted imposi- ital statute which “special tures treated the circumstances" as penalty only of the tion after “the trial Nevertheless, sentencing criteria. to be sub- budge] court found that the crime was commit- ject culprit to the death had to greater culpable ted with a mental state than murder, guilty guilty then be first Quinn, jury.” that found 383, 404, 290 Or. murder, degree finally first be found to The court degree have committed first in one or more of finding judge’s concluded that a of “a mental special enumerated circumstances. the Brushing greater state different and than that found formality aside the of this scheme special jury,” 290 Or. 623 P.2d at de- at moment, circum- for a effect prived capital right a her defendant of degree stances was to subdivide first murder jury’s a determination of the facts of the crime degree non-capital mur- capital first into charged. der. process, jury nor a satisfy due doubt necessary L.Ed.2d in order to con- 103 S.Ct. determination directly (1983). These assessments Amendment. form with Sixth guilt” “moral a defendant’s measure McMillan, conclusion The Court’s jury’s culpability traditionally overall — present in however, upon facts not turned v. Flor Enmund decision. See domain of instance, For the Court case. instant 782, 800, 102 S.Ct. ida, 458 U.S. Pennsylvania had significant found it (“American criminal the enumerated the elements of defined in a defendant’s long considered law offenses, allow as their maximum as well guilt his moral therefore tention—and —to sentences, prior to years at least ten able criminal ‘degree of be critical [his] at issue. Id. at 2416- passing the statute Mullaney, (quoting culpability’_”) legis noted that the majority also 17. 1889).28 at 95 S.Ct. could have chosen add visible lature aggra- hold that Arizona’s We therefore of the enumerat possession as an element elements function as vating circumstances not, however, and thus It did ed offenses. requiring capital murder crime of only sentencing. affected the new statute jury’s determination. Thus, concluded the Court Id. at 2417. by petitioners of specter raised that “the 3. existing in or restructuring crimes States conclusion support for our Further Winship the commands of der to ‘evade’ Pennsylvania, found in McMillan appear in this case.” Id. just does not L.Ed.2d Court’s contains which consti- pronouncement on what recent most contrast, totally Arizona’s is a revised re- criminal offense element of a tutes an which, when enacted statutory scheme doubt, beyond a reasonable quiring proof from the defini in essence withdrew right jury determina- and to which “ele homicide crimes various tion of its up- in McMillan tion attaches. preserved in Arizona traditionally ments” increas- Pennsylvania statute which held and reclassified determination im- judge can sentence a es the minimum sentencing circumstances. judicial them as finding, by preponderance upon pose and circum of the elements The confluence evidence, “visibly pos- person stances, the simultaneous combined with during the commission firearm” sessed a allocating the burden repeal of the statute is- The statute at underlying offense. enact mitigation at trial and proving mandatory minimum sen- required a sue allocating this burden statute ment of the imprisonment for cer- years’ tence of five sentencing, distinguishes Arizo judicial at 2414. felony tain convictions. one in McMillan.29 from the na’s scheme posses- argued that visible petitioners The however, the Court significantly, Most crime, of the demand- an element sion was its result could be in that stated McMillan protections. ing attendant constitutional possession finding “if of visible a different concluding the disagreed, that The Court greater to or addi- exposed factor did possession [defendants] of a firearm” “visible 2418. The Id. at punishment_” beyond reasonable tional require proof a not alia, intentionally by, gree inter murder occurs to inquiries are identical in essence 28. These (statutory) causing premeditation dis- another’s required the formal under and with those among The death). makes homicides. Arizona tinctions entirely almost on differences turn distinctions in the defendant’s state, provides mental as this Further, although previously, discussed 29. as culpability. 13-1102 § See A.R.S. measure of a Pennsylvania have classified both Arizona and causing (negligent another’s homicide involves sentencing facts as existence of relevant through negligence), § 13-1103 death criminal considerations, aggravating circum- Arizona’s alia, by, (manslaughter recklessness occurs inter of an element— the attributes stances have all (second death), causing 13-1104 § another’s in degree right jury’s except to a determination. for the alia, by, occurs inter intentional- murder (first death), causing de- ly another’s 13-1105 § B. fact emphasis on the great placed statute Pennsylvania jury’s entitled to a is a defendant While of regarding the existence penalty determination the maximum alters neither not, crime, a defendant of a elements crime committed a nor creates a however, constitutionally entitled to have separate calling for a offense separate punishment. appropriate jury determine solely to limit operates penalty; Florida, Spaziano In selecting in sentencing court’s discretion (1984), the Su- already range penalty within “over-ride” upheld Florida’s preme Court it without to find- special available impose judge allows a provision which firearm. of a possession ing visible of jury recommenda- despite a sentence added).30 The (emphasis challeng- imprisonment. at 2417-18 Never life tion of however, principle criminal operate ing the fundamental at issue statutes see trial, jury to a are entitled defendants degree Although first differently. very Duncan, at 88 S.Ct. 391 U.S. at by life punishable in Arizona is murder Spaziano in examination the Court’s see death, A.R.S. imprisonment constitutionality judicial limited cannot, any 13-703(A), under a defendant § appro- “sentencing” “the evaluation circumstances, un- to death be sentenced imposed.” punishment to be priate circumstance least one less at at 3160-61. at find- Consequently, to exist. is found judicial claim of Court never addressed “exposes ing the of- fact-finding to an element of pun- greater or additional [defendants] never Thus the Court reached fense. Further, because Id. at 2418.31 ishment.” raised: Adamson contention particular “aggravating circum- least one proof of at sentencing statute capital that Arizona’s be- capital murder required, stance” elements to determine requires sepa- calling for a offense thereby taking a distinct comes charged, offense in jury’s hands otherwise available— punishment not element out rate factual Sen- Amendment.32 of the Sixth violation of death. penalty jury presence of factors that finds the distinguished majority Mulla- the legislature McMillan 30. The make the crime has determined re down a criminal statute ney struck which egregious. beyond doubt of more proof a reasonable quiring comprising as de only the offense facts those great lengths Spaziano in Court went to 32.The state, especially by where the defend fined “ re- is no constitutional point out that there sentencing ranging ‘a ant differential faced jury appropriate determine the quirement that a mandatory sen fine life nominal from a ” death-eligible every See offender. sentence Mullaney, (quoting Id. at 2417 tence.’ 460, 462-63, 465, 468 U.S. 3163, Adamson, 1890). For S.Ct. at However, ad- that we not are 3165. greatest dif life death—the are alternatives jury deter- dressing in the ultimate the role of a appro choosing to a court available ferential punishment, we find a appropriate mination penalty. priate Spaziano and between compelling distinction case. the instant Rosen, Ag- "Especially Heinous" Accord Capital Moreover, pointed Spaziano out gravating Cases—the Circumstance the Court Standard, noting “Petition- 64 N.C.L.Rev. "not at Standardless issue” what Rosen, Especially urge capital Hei- is so (1986) [hereinafter n. 96 er does it is Aggravating guilt or innocence that ]: a trial on nous Circumstance like much decision in Duncan the Court’s [finding aggravating cir- controlled situations both Louisiana, right [guaranteeing the ... in a trial elements cumstances (citations at 3161 S.Ct. pres- Id. at trial].” omitted). guilt/innocence trial] the crime in a a dicta, stated, where as that The Court primary element has of an additional ence appropriate of is the determination in- the issue increasing punishment. For of effect stance, hearing sentencing is not trial- punishment, a simple is person of assault convicted Amendment, and purposes the Sixth crime, of like for primary of a effect guilty aof jury's not entitled to deadly the defendant thus finding used a jury the defendant 104 S.Ct. 3161. punish- determination. the authorized is to increase weapon contrast, arson, makes a contention Adamson burglary, and such Crimes ment. particular focusing Spaziano, urged degrees, commonly into divided are murder fact-finding regarding elements increasing of severity if nature punishment of with tencing, or the ultimate determination of an decisionmaker’s discretion determin- when appropriate penalty, ing (F)(6) involves the whether the weighing circumstance exists. of weighing completely factors. Such A. findings

distinct from threshold of whether requisite elements even exist from which Arizona, states, many respond like other guilt trier-of-fact draws conclusions on by ed to Georgia, implementing Furman v. or innocence. specific guidelines intended to narrow the trier of fact’s Cartwright discretion. See Thus, Spaziano controlling is not in this (10th Maynard, 822 F.2d Cir. case, question as it left untouched the _ U.S. 1987) (en banc), _, aff'd, right to jury aggra- trial where the (noting' L.Ed.2d 372 vating circumstances of a state’s death thirty-five states enacted new death penalty capital statute are elements of a penalty Furman). statutes after The Su offense. preme upheld against Court has limited statutory attack designed schemes to en

C. decisionmaking sure channeled by consider ation of aggravating cir We therefore conclude that the function See, Texas, cumstances. e.g., Jurek v. aggravating circumstances, of Arizona’s 49 L.Ed.2d 929 light considered in development (1976); Florida, Proffitt statutory Arizona’s revised scheme and (1976); Gregg v. McMillan, demand that the veil of the sen- Georgia, tencing factor label be lifted. We hold that impermissibly identified ele- Several capital ments of the crime Court decisions murder as have the constitutionality aggravat- factors for determination addressed ing circumstances in key which the judge, thereby removing terms their considera- are similar—or identical—to those selected jury, tion from a in violation of the Sixth legislature (F)(6) the Arizona for the Amendment. We reverse the district court circumstance. In Gregg, the Court con- on this issue and remand with instructions sidered the constitutionality of an aggra- grant corpus the writ of habeas unless vating State, Georgia circumstance the revised time, impos- within a reasonable penalty death statute. That circumstance es a sentence other than death. applied if a “outrageously murder was or vile, horrible, wantonly or inhuman in that V. torture, depravity mind, it involved or an only aggravated Not must a determine battery to the victim.” 428 the existence of including U.S. at 165 n. 96 S.Ct. at 2922 n. 9. The elements— aggravating those mislabeled as although circum Court held that all murders could crime, stances—which constitute the but be characterized so as to fall within the requires the Constitution also that there statutory “language circumstance the need guidelines making to channel discretion not be construed in way, and there is findings. these Adamson received the no reason to assume penalty after the Georgia adopt open- trial found Court of will such an presence of two circum ended construction.” 428 U.S. at 13-703(F)(5) 2938; (“pecuni stances: A.R.S. Proffitt, S.Ct. at see also atU.S. §§ motive)33 (F)(6) ary gain” (“especially (reviewing 96 S.Ct. at 2968 a Flor- heinous, cruel, murder). depraved” We ida circumstance which al- (F)(6) conclude that the capital circumstance vio lowed the death if “the felo- Eighth ny heinous, atrocious, lates the and Fourteenth especially Amend cruel”). by failing adequately ments to channel erroneously capital challenge listed in are Arizona’s sen- Adamson does not constitution-

tencing aggravating ality scheme as circumstances. of this circumstance. 1030 support years Godfrey aggravating later in v. and could circum- Several Geor “ stance, the Oklahoma court

gia, 446 U.S. S.Ct. had ‘refused (1980), plurality any of the Court to hold that one of L.Ed.2d 398 those factors must given Georgia present satisfy had in fact a suffi be for a murder to held that ” ciently narrowing aggravating construction to the broad circumstance.’ Id. 108 S.Ct. (quoting The statutory Gregg.34 Cartwright, terms attacked at 822 F.2d at previous (emphasis original)). Court also reaffirmed its mandate agreed that the states “channel the sentencer’s Court with the Tenth that Circuit objective open-ended and standards’ such an approach discretion ‘clear was unconsti- provide ‘specific guid Godfrey, that and detailed tutional under where Court ance,’ rationally “rejected particu- and that ‘make reviewable had the submission that a imposing murder, process surrounding a sentence of lar set of facts how- ” be, Godfrey, shocking they might enough death.’ 100 ever were themselves, (quoting narrowing Gregg, S.Ct. at 1765 428 U.S. at and without some 2936; principle facts, apply to those Profitt, S.Ct. at 428 U.S. warrant 2967; imposition penalty.” of the death Id. at S.Ct. Woodson North Thus, Carolina, 2978, 1859. the Court found Oklahoma’s application (1976)). aggravating of its circumstance 49 L.Ed.2d 944 unconstitutional for two reasons: Stephens, Zant v. First, language ag- of the Oklahoma (1983), S.Ct. 77 L.Ed.2d 235 the Court gravating “espe- circumstance at issue— circumstances, aggravating cautioned that heinous, atrocious, cially gave or cruel”— discretion, intended to direct could while guidance “outrageous- no more than the vague they adequately “so that would fail vile, ly wantonly horrible or inhuman” patterns to channel the decision language jury that the returned in its juries pattern with the result that a in Godfrey. verdict The State’s conten- arbitrary capricious sentencing like “espe- tion that the addition of the word that found unconstitutional in Furman cially” guides jury’s somehow discre- could occur.” Id. at 103 S.Ct. at 2742 tion, not, if even the term “heinous” does (citation omitted). The Court thus instruct- say something is untenable. To genuinely ed states to narrow the class of “especially merely suggests heinous” Id.; persons eligible penalty. for the death jurors that the individual should deter- Brown, see also California just mine that the murder is more than “heinous,” means, whatever that (Constitution requires penalty that “death ordinary person honestly could believe prevent statutes be structured so as every unjustified, taking intentional being from administered in an arbi- “especially of human life is heinous.” fashion”). trary unpredictable recently, Most Second, the conclusion of the Okla- — U.S. -, Maynard Cartwright, Cartwright’s homa court [in case] unani “adequately sup- the events recited mously affirmed the Tenth Circuit’s hold ported finding” jury’s was indistin- heinous, ing “especially that Oklahoma’s guishable Georgia from the action of the atrocious, or cruel” circum court in failed to cure Godfrey, which unconstitutionally vague. The stance was unfettered discretion of the and to sitting Tenth Circuit en had conducted banc satisfy Eighth the commands of the inquiry an exhaustive of Oklahoma’s case Amendment. that, Oklahoma’s law. It concluded while (citations omitted). highest court had held that the attitude of killer, Thus, killing, expressly the Court has condi- the manner suffering tioned the use of circumstanc- of the victim were relevant plurality erning application. 446 U.S. at reversed the defendant’s sentence, however, concluding Georgia had S.Ct. at 1766-67. gov- guidelines followed its own announced

1031 upon ability interpret es the state courts’ remaining Although circumstances.35 statutory apply guidelines and in a is not a constitutional violation in and of narrow and consistent manner. Given that itself, the popularity (F)(6) circum- (F)(6) composed circumstance is appears stance symptomatic to be of its inherently vague, terms that are God cf. catch-all function. frey, 446 U.S. at 100 S.Ct. 1765 Three emerge reasons explain the fre- (“[t]here nothing words, in these few quent (F)(6) use of First, circumstance. alone, standing implies any inherent range a broad pro- definitions have been restraint arbitrary capricious on the “heinous,” vided for the “cruel,” terms sentence”), infliction of the death we must “depraved,” each of which employ tends to (F)(6) decide whether the circumstance has terms phrases prone subjectivity given sufficiently been narrow construc and ambiguity as they those were meant to Supreme tion the Arizona Court. Second, define. the Arizona courts have not restricted the creation of

B. new defini- tions and factors that could constitute an legislature The Arizona intended that the (F)(6) finding. Third, even the most con- heinous, depraved” cruel or ag “especially crete of those definitions have been incon- gravating provide guidance circumstance sistently applied. judges presiding aggravation-miti over gation Moreover, hearings. surely not meant to used as a “catch-all for degree those first murders where no other (F)(6) The composed circumstance is aggravating applies.” circumstance State is, language question, without Gretzler, 135 Ariz. 659 P.2d susceptible most subjective interpreta 10, cert.denied, tion of all of Arizona’s enumerated statu (1983) (quoting 77 L.Ed.2d 1327 State tory aggravating circumstances.36 It Ortiz, 639 P.2d objectively therefore the most difficult to (1981), denied, cert. Ortiz, define. State v. 131 Ariz. at Cf. (1982)). has, It (Godfrey established that however, just been used this manner. “objectively states must define the terms (F)(6) aggravating circumstance is circumstances). aggravating used” Not

by far frequently the most invoked circum- surprisingly, then, the Arizona aggravat- stance of all of 13-703’s nine § Court has been unable to arrive at a defini ing degree circumstances. Out of all first any key tion of terms that can be proof aggravating murder cases where uniformly applied. sought, “especially circumstances was (F)(6) heinous, published The first definition of the depraved” option cruel or appeared terms Knapp, used over more often than 68% the next commonly circumstance, most used

more than more often than any of the 108% reversed; (4) post-1973 35. Out of a total of 72 and subsection was used in 1 case cases where an involved, circumstance was appeal. and was affirmed on pursued "espe- 56 of those cases From 1973-1978 circumstanc- heinous, cially depraved” cruel or circumstance 454(25). es were listed under A.R.S. § Since 13— —on review to the Arizona Court there they have been listed under A.R.S. affirmances, were 43 12 reversals and 1 was not 13-703(F). § Because the content of the enu- appeal. remaining addressed on break- merated circumstances were identical for cir- (5) down is as follows: subsection was used in (1) (6) 13-454(E) cumstances under both §§ — affirmed, 34 cases—27 5 reversed and 1 not 13-703(F), identify aggra- the totals above (2) appeal; addressed on subsection was used in vating the subsection number affirmed, 27 cases—24 2 reversed and 1 not only. (1) appeal; addressed on subsection was used in reversed; 24 cases—22 affirmed and 2 subsec- ag- supra listing 36. See note 2 for of Arizona’s affirmed, (3) tion was used in 22 cases—8 gravating circumstances. appeal; reversed and 1 not addressed on subsec- tion was used in 2 cases—1 affirmed and 1 Zaragoza, mind,” (1978) (quoting rupt Webster’s state of cert. 63, 69-70, 22, 28-29, Dictionary): Ariz. 659 P.2d International Third New denied, 1124, 3097, 462 U.S. 103 77 S.Ct. hatefully shockingly or evil: heinous: (1983), 1356 ‘shockingly L.Ed.2d or “a evil’ grossly bad. ” debasement,’ by state of mind ‘marked esp. in disposed pain to inflict cruel: Ceja, v. State 35, 39-40, 126 Ariz. 612 P.2d wanton, man- insensate or vindictive 491, (1980); 495-96 whereas a murder can ner: sadistic. depraved be heinous and/or if it is charac debasement, depraved: by cor- marked by “savage terized “senselessness” and a ruption, perversion or deterioration. Gillies, State v. death,” manner of 142 Gretzler, also 51, See 135 Ariz. at 659 P.2d 564, 570, 655, (1984), Ariz. 691 P.2d 661 State v. Later, in (quoting Knapp). at 10 denied, cert. 1059, 1775, 470 105 U.S. S.Ct. Lujan, 124 Ariz. 365, (1979), 629 604 P.2d (1985) (“Gillies II”), by 84 L.Ed.2d 834 or identified a dif- the Arizona victim, helplessness as to the senselessness among stat- ference the terms. court crime, “gratu as to the and the infliction of cruelty goes ed that to whether the “victim State v. Carri victim, pain” itous on the pain,” “heinous” and “de- suffered while ger, 143 Ariz. 142, 160, 991, 692 P.2d 1009 praved” focus on “the killer’s state mind denied, cert. (1984), 1111, 471 U.S. 105 Id. 372, at the time of the offense.” 604 2347, (1985);37 S.Ct. 85 L.Ed.2d 864 while a Although oft-repeated, both P.2d at 636. depraved murder is not heinous or —but terms and Lu- amorphous Knapp’s list of cruel —when defendant’s actions “re jan ’s definitional distinction failed to have flect a mental state that is ‘marked ” any meaningful benefit the trier-of-fact Vickers, debasement,’ 129 Ariz. way. Cartwright, 822 F.2d at 1489 506, 515, 315, (1981), 633 P.2d 324 or indi (“Vague suddenly terms do not become life,” disregard cate “a total for human they are defined reference to clear when Correll, v. State 468, 481, 148 Ariz. 715 terms.”). vague other 721, (1986), 734 or P.2d “a manifest dis Thus, subsequent cases have set forth regard principles upon for the fundamental “cruel,” “heinous,” and “de v. Mar definitions based,” State society which our is tinez-Villareal, praved” using phrases 441, 451, terms and that are 145 Ariz. 702 denied, cert. vague, open 670, 680, 975, equally subjec broad and P.2d 474 U.S. cruel, 339, interpretation. example, (1985), For tive 106 S.Ct. 88 L.Ed.2d 324 or are life,” depraved “totally regard heinous and murder is one that is without for human “ Clark, v. 428, 437, State pitiless crime 126 Ariz. 616 P.2d ‘conscienceless or which ” denied, cert. victim,’ 888, 897, 1067, 449 101 unnecessarily torturous U.S. Watson, 796, (1980), v. 441, 448, State 66 L.Ed.2d 612 or where 120 Ariz. denied, “perverted.” cert. 1253, (1978), the defendant’s conduct P.2d Madsen, v. 346, 352, State 924, 1254, 125 Ariz. 99 S.Ct. 59 L.Ed.2d 478 denied, cert. 873, 449 U.S. (1979), whereas a murder can be heinous (1980). 66 L.Ed.2d 93 These if depraved the defendant’s conduct guidance give precious little as to words disregard for human reveals a “callous (F)(6)’s LaGrand, meaning key terms. State worth,” 153 Ariz. — denied, cert. 734 P.2d 2. -, (1987), if the defendant had a “vile state of or Court in State murder,” v. Gretzler reviewed State nearly mind at the time of all of its McCall, cruel, depraved” 677 P.2d “especially heinous and denied, The Gretzler court cert. (1983), ex- jurisprudence. that, matter, plained general if the as a the term suffering “cruelty” on the victim’s shockingly “a evil and cor- focuses defendant had 882, 103 S.Ct. been defined as a "shock "Senselessness” has L.Ed.2d Tison, (Ricky) evil state of mind.” ingly (1981), 633 P.2d “depraved” ally physical pain terms “heinous” and suffered prior while the mental death, state and attitude of the or where the presented involve the mental evidence inconclusive, at the time of the murder. 135 is we have held cruelty defendant P.2d at 10. The court then was not Ariz. at shown.” 135 Ariz. at (F)(6) discussing have, fact, turned to each these at 10. Numerous cases re greater respect finding detail. With versed a of “especially terms cruel” be briefly cruelty, lacking. the court summarized the cause such evidence was If it can then-existing cruelty proven, however, on the con- case law the victim was cept grown merely prior had to include a victim’s conscious just which to or after the distress, attack, suffered physical mental and/or the cruel criterion can be satisfied. by concluded, after attack the defend- As one before and/or commentator the Arizo respect exposition ant. Id. With to heinousness and na Court’s of the “es depravity, pecially component the court went on to note that cruel” “would make the F(6) suggested specific applicable have criterion any cases to almost first “[o]ur id., finding,” degree factors which lead to murder case unless it involved a [their] single, Pulaski, proceeded identify unsuspecting five factors victim.” satisfy Capital held to these terms: Sentencing, which had been 1984 Ariz.St.L.J. Moreover, suffering may 30. since occur apparent relishing of the murder either before or after attack the defend by the killer. ant, single unsuspecting that victim must gratuitous 2. The infliction of violence die, unconscious, or be rendered instantane victim. ously apply. for this criterion to See State 3. The needless mutilation victim. 492, 501, Harding, 141 Ariz. v. 687 P.2d 4. The senselessness of the crime. 1247, (1984) (“The 1256 evidence indicates helplessness 5. The of the victim. instantaneously, that the victim did not die 52, Thus, by offering P.2d at 11. slowly, being but rather died his death (F)(6) considering the a checklist for courts by asphyxiation being caused due to his circumstance, appeared to be an Gretzler was.”). Indeed, gagged nearly as he attempt provide limiting construction every finding cruelty case in which a (F)(6) to the terms and their varied defini- reversed, only the court concluded tions that would able to withstand con- prosecution proven not had the victim Pulaski, Capital stitutional attack. See See, Wallace, e.g., was conscious. State v. Sentencing in Arizona: A Evalu- Critical 362, 367, 232, (1986), 151 Ariz. 728 P.2d ation, 1, 1984 Ariz.St.LJ. 28-29 [herein- — denied, —, 3243, 97 cert. 107 S.Ct. Pulaski, Capital Sentencing after ]. (1987)(“the L.Ed.2d 748 record is inconclu attempt guide the sentenc- Gretzler’s any sive as to whether of the victims were failed, however, (F)(6) er under two following even conscious the initial blow to respects. Although Gretzler reviewed head”); Poland, 388, State v. 144 Ariz. cases, large number of it did not—nor has 183, (1985), 698 P.2d aff'd, 476 U.S. any specific since—stated what case (1986) (F)(6) finding. necessary factors are for an (“A finding cruelty cannot stand where Moreover, any the court did not include prove beyond the State has failed to a rea instructions to limit future review sonable doubt that the victims were con result, factors. As a enumerated death”); scious at the time of State Villa provide has failed to satisfaction of God- fuerte, 142 Ariz. 690 P.2d mandate that circum- frey’s denied, 1230, 105 cert. objectively guide discretion and stances 1234, 84 (1985)(doctor L.Ed.2d 371 could not penalty. application narrow of the death “testify as to whether the victim was con suggest While did two eviden- scious after she Gretzler sustained blow to the determinations, (F)(6) head”); Graham, tiary limitations State v. 135 Ariz. accomplished narrowing (1983) (“medical neither has its 660 P.2d ex First, purpose. opinion the court stated that where aminer testified that in vic [the actu- “there is no evidence the victims was rendered unconscious immediate- tim] previous Ariz. at Zaragoza, regarding ly”); finding of cru cases— state could elty. found because Previously, cruelty not (cruelty had focused ex conscious); State clusively Adamson, victim on the prove victim. In how ever, 661 P.2d giving any expla court—without Jeffers, expanded cruelty concept to in nation— (no (1983) cruelty component be inquiring clude a into the men the record that ... tal state of the appears from defendant. 136 Ariz. at “it cause such, consciousness”). (for As 665 P.2d at 988 cruelty finding lost the victim defendant operated instead must also intend that the alleged limitation has “[t]he victim suffer or degree reasonably murders virtually first foresee that all to include there is a substantial likelihood the victim was proven that it can be where victim consequence will suffer as a conscious. acts”); (Ber defendant’s see also attempt ap- Gretzler’s other to limit the nard) Smith, (F)(6) plication of the circumstance can be (F)(6) (reversing finding be suggestion found in its the fourth “prerequisite” cause Adamson not estab (senselessness) (helplessness) and fifth facts); lished Bracy, may factors alone not be sufficient for a 520, 537, 464, Ariz. (1985), 703 P.2d 481 finding of depravity. heinousness or Yet denied, 1110, 898, cert. 106 S.Ct. in Zaragoza only days four after —decided (1986) 88 (noting L.Ed.2d 932 Adamson appears Gretzler —it only those two prerequisite); McCall, 161, 139 Ariz. at 677 present. factors were 135 Ariz. See (same); McDaniel, P.2d at 934 State v. 136 69-70, 659 P.2d at 28. in Zarago- The facts 70, (1983) 665 P.2d 82 support finding za identified to of “hei- (same). This additional consideration has depraved” nous and were the victim’s ad- not, however, been post- utilized all age vanced capabilities and limited mental See, Rossi, Adamson cases. e.g., State “helpless.” demonstrate that she was 371, (1985) 146 Ariz. 706 P.2d 377 “senselessly The victim was killed” be- (“Rossi I”) found, (cruelty but no discus cause the defendant “could have accom- mind). sion of defendant’s state of plished goals whatever criminal he desired killing Thus, without her.” Id. The court then cruelty, establish the Arizona (F)(6)finding. affirmed the only cogni- rely upon showing courts can facts that the way explain zable from deviation victim was period conscious for a of time finding inconsistent, without attack, Correll, Gretzler it before an 148 Ariz. at 480- by interpreting Zaragoza adding 81, (victims an ad- 715 P.2d at 733 uncertain as to fate), ditional factor to attack, Gretzler’s list of five: their ultimate or after an heinousness depravity may I, 365, and/or be Rossi 146 Ariz. at 706 P.2d at 377 (“victim shown when the victim elderly. Such an remained conscious for a short interpretation would, however, illustrate an time” after the second shot and before the shot), additional flaw in Arizona’s construction of third fatal and suffered from either (F)(6) mental, circumstance. 160, Carriger, 143 Ariz. at (victim pleaded P.2d at 1009 for his life and (F)(6) Because Gretzler did not limit re distress), thus suffered physical mental or identified, view to the factors the Arizona pain. Clabourne, 335, State v. 142 Ariz. Supreme Court has been free to fashion 348, 54, (1984) (victim 690 P.2d beaten factors, bringing additional defend more raped). (F)(6) example, ants within the net. For opinion, the court’s regarding Adamson 136 Ariz. The list of may factors what 250, 972, denied, 665 P.2d cert. especially constitute an heinous or de- 865, 204, (1983), praved murder similarly grown since strayed have, the court from Gretzler —and all Gretzler.38 Post-Gretzler cases Moreover, 206, 1031, the Arizona court has not Ariz. at resolved 639 P.2d the Arizona Court any really attempted distinguish the difference—if exists—between the between them ex- Ortiz, "depraved.” plaining "depravity words "heinous” and focuses on the murder- (victim depravity 700 P.2d at 1326 example, “helpless held exists when was a old, Fisher, year child”), defendant murdered victim to eliminate seven old or too (Roger witness.39 potential 252, (victim Ariz. at 686 P.2d at 775 Smith, 510, 511-12, Lynn) 141 Ariz. seventy-three years old); the defend- McCall, 1265, (1984) (citing P.2d 1266-67 having apparent ant no motive for the mur- 935); Correll, 162, 139 Ariz. at 677 P.2d at der, Wallace, 368, 151 Ariz. at 481, 734; see also 148 Ariz. at 715 P.2d at 237, having a motive the court did not II, Gillies P.2d at 661 Ariz. at Correll, of, approve 148 Ariz. at (elimination deprav of witnesses illustrates (motive P.2d at 734 to eliminate witnesses heinousness),40 ity and and when the vic robbery); to a the defendant used more tims had been kind to the defendant. State victim, necessary force than was to kill the Fisher, 141 Ariz. 686 P.2d Summerlin, enough, or not Decisions have Chaney, 141 Ariz. at 686 P.2d at 1282 committed also stated that defendant (“[w]hen Chaney left he knew the victim depraved the murder in a heinous and man Chaney was not dead knew the victim ner the defendant showed a “total when suffering”); way the “murder in no disregard for human life.” A defendant McCall, killers,” plan furthered the totally regard for life kills without human 139 Ariz. at 677 P.2d at or facili- particular person: if that chooses a Villafuerte, escape, tated the defendant’s method of murder when “less violent alter (defendant 142 Ariz. at 690 P.2d at 50 him,” readily natives were available purpose prevent indicated that his “was to Wallace, 151 Ariz. at 728 P.2d at 238 calling police”); the victim from (defendant gun chose not to use a loaded imagine when the court could a less violent he him he feared the had with because Chaney, 313, alternative. 141 Ariz. at 686 (2) neighbors); alert kills noise would when (defendant P.2d at 1282 “could have taken except there is no other motive to eliminate guns two-way the victim’s and disabled the Correll, robbery, to a witnesses shots); Wal- radio” rather than fire fatal 734; (3) knowingly P.2d lace, 151 Ariz. at 728 P.2d at 237 designed special uses bullets to cause (defendant gun could have used a loaded he greater damage regular tissue than bullets carrying but did not because he feared gives spent and then bullets as “souvenirs” neighbors”). “the alert noise would I, to a friend. Rossi 146 Ariz. at P.2d at 377. attempt to limit the Gretzler’s broad depraved thus scope of heinous and

Thus, finding for a that a murder was proven preventing unsuccessful at the un- depraved pos- especially heinous and/or imposition of death sentences. channeled appear endless. conclusions sibilities Such view, as supported part by Apparently the dissent shares this have been the victim Roscoe, (F)(6) being young, noticeably too 145 Ariz. at absent from the dissent’s mind, Note, Capital er’s state of society’s and heinousness focuses on See Punishment in 1984: Aban- compared doning Consistency, view of the murder as Pursuit Fairness and specific delineation was other murders.” This and n. 687 69 Cornell L.Rev. suggested post-Gretzler in a case. State v. also Roscoe, Hensley, 142 Ariz. 40. In State v. (1984), the Arizona Court identified this (1985) (“The words ‘hei 13-703(F) (motive support of A.R.S. § factor in ‘depraved’ [respectively] refer nous’ and (F)(6). pecuniary gain) than —rather nature of the crime mind.’’). the state of defendant’s ("The Ariz. at 691 P.2d at 694 defendant not, however, recognized It has been during lie on the had the three victims floor any subsequent opinion. robbery leaving before the bar shot each with that no witnesses victim in turn the intent Arizona, "killing significant that in of a It is Thus, robbers.”). identify ap- be left to judicially-created aggravating is a cir- witness” pears be used to that the same behavior can by rather cumstance legislature. than one identified states, support cir- of two distinct killing either thirteen other statutory aggravating cumstances. witness is a circumstance. any discussion is defense for these two the repeatedly empha Court has sized, factors. Even the dissent can- suitably it is the directed discretion principled justification not muster a for sentencing of the body protects which which, essence, such factors allow the against arbitrary capricious capital sentencing subjective court to make deter- sentencing. Maynard, 1858; 108 S.Ct. at par- minations as to the offensiveness of a Godfrey, 446 U.S. at 100 S.Ct. at Rather, ticular murder. the dissent at- 1765; Gregg, 428 U.S. at 96 S.Ct. at tempts to save Adamson’s death sentence 2932; Furman, 408 U.S. at 92 S.Ct. at by arguing any constitutional infirmi- (White, J., concurring). ap Post hoc limiting ties in the State’s construction of pellate rationalizations for death sentences (F)(6)’s depraved heinous and factors cannot improperly save channeled determi should not otherwise taint Adamson’s nations only court. Not death sentence since the Arizona appellate are institutionally courts ill- Court affirmed “cruelty” his sentence on equipped perform the sort of factual grounds. balancing aggravation-mit called at the igation stage sentencing proceedi argument

The dissent’s is flawed in two ngs,41 but, First, importantly, reviewing more respects. the dissent’s alternative court way has no argument begs underlying par determine how a question sentencing body ticular would have exer constitutionality limiting con- cised its given cruelty by struction discretion had it considered the Arizona which, noted, applied appropriately already statutory courts as we have limited suffers from terms. Mississippi, the same constitutional in- See Caldwell v. 320, 330, 105 limiting firmities as those giv- instructions 86 L.Ed. depraved. en (“[state] court, heinous and 2d 231 appellate un capital sentencing like a jury, Moreover, accepting wholly even the dis ill-suited to evaluate the appropriateness of sent’s cruelty appro characterization of instance”); death in the first Presnell v. priately courts, limited the Arizona 14, 16-17, Georgia, Adamson’s death Eighth sentence still fails (1978)(reversing state principles. Amendment That the Arizona appellate court affirmance of death sen Supreme Court affirmed Adamson’s death tence finding based on state court’s own grounds sentence cruelty based on in no aggravating an circumstance that had not way sentencing judge’s cures the failure to been sentencing jury) (per found apply allegedly cruelty constitutional curiam). particularly significant This is un construction in sentencing pro Adamson’s capital der Arizona’s sentencing scheme ceeding. respect (F)(6) aggra With principles prevent jeopardy since double circumstance, vating Judge spe Birdsall’s appealing State from a defendant’s sen simply cial verdict states in conclusory imprisonment (rather tence of life than terms that “the circum death) capital sentencing hearing. after a ... exists com stance[ ] [since Adamson] U.S. at Rumsey, 467 S.Ct. at 2310. cruel, especially mitted the offense in an depraved manner,” sum, and heinous and pro- then Arizona has been unable to briefly clearly parameters describes Bolles’ murder. Absent vide discernable to es- special any from the verdict is discussion or tablish what kind of conduct falls within application suffering” (F)(6) of the “actual cruel appears circumstance. The court ty standard on rely presented which the dissent relies to to on whatever events are to (F)(6) justify finding. the court’s Yet as it. The court is therefore free to review circumstances, Supreme gating appellate pro- 41. As the Court noted in make the Arizona Rumsey, 467 U.S. single part continuing sentencing cess of a capital the Arizona proceeding. Supreme The Arizona Court empower reviewing scheme does not court strictly noted that its role is that of an [has] to make trial-like factual determinations: court, appellate not a trial court. review, availability appellate Nor does the omitted). (citation Id. at 104 S.Ct. at 2309 including reweighing and miti- Thus, cruelty nor grounds”). neither hei- that it any actions or events for record heinous, depravity necessary, or is especially cruel nousness nor but to be believes any (F)(6) complete lack an any Given the will suffice to sustain depraved. one guide the court that objective finding. standards au decisionmaking, and its unlimited

its present any and all facts thority to consider case, only conclude can particular we in a plethora Finally, note that within we attempts Supreme Court’s the Arizona may consider the Arizona Courts of factors (F)(6)circum constitutionally narrow in and there been much contradiction Accord, Rosen, Espe have failed. stance (F)(6) application consistency Circum Aggravating cially Heinous Smith, (Bernard) Compare circumstance. (“The list of stance, at 981 64 N.C.L.Rev. (not 504, 707 P.2d at 146 Ariz. at Arizona considerations though passed between cruel time even support willing use to has been money for the cash demand defendant’s its comprise of the three terms one shooting, victim register time of and is ex aggravating factor especially heinous Chaney, weeks), with for two did die broad.”). tremely (cruel 141 Ariz. at 686 P.2d at problem of unlimited discretion anguish mental suffered because victim by the Arizona compounded by his being shot as call prior evidenced (F)(6) circum construction Court’s “was victim conscious help because prose disjunctive so that the in the stance minutes”); com thirty for approximately showing upon a burden satisfied cution’s 372-73, 604 P.2d pare Lujan, 124 Ariz. or cruel is either heinous a murder though ((F)(6) victims at 637 reversed even Castaneda, depraved. unnecessary helpless, killing was were Gretzler, (1986); plan, and victims’ accomplish defendant’s con 659 P.2d at 10. This Ariz. at Correll, severe), with were wounds approve the courts has invited struction (depravity 715 P.2d at 734 Ariz. at (F)(6)aggravating circum disapprove killing helpless, victims because affirmed sentencing judge based finding by a stance accomplish the rob unnecessary to ill-defined three any of this subsection’s compare gagged); bery, bound victims have, in a courts appellate terms. Graham, 660 P.2d at 463 135 Ariz. at cases, court’s a lower reversed number though defendant ((F)(6) even reversed (F)(6) respect to one finding with “the victim friends that as he told “smiled” terms, the defendant’s yet affirmed shot”), he was like a rabbit’ when ‘squealed returning for rew the case penalty —without Madsen, 609 P.2d at 125 Ariz. at the court confirmed eighing42 —because though even de ((F)(6) reversed 1052-53 (F)(6) one other least presence get mon “easy to bragged it was fendant Wallace, 151 Ariz. at term. Cf. away” and col ey, you just blow someone cruelty (reversed finding of but at 237 Martinez-Vil with money), lect insurance Vil depraved); and as to heinous affirmed 451, P.2d at lareal, 680 Ariz. at 323, at 50 690 P.2d lafuerte, 142 Ariz. at defendant because (depravity affirmed as cruelty affirmed (reversed finding of but murdered he to a friend that bragged to Smith, (Robert) depravity); Clark, Ariz. and “machismo”), at show (af (1983) 85-86, P.2d Ariz. (depravity affirmed at 897 P.2d cruelty finding of but reversed firmed friend, “you should told where defendant Godfrey, also depraved). See and heinous him Charley I hit with when seen (White, J., have 454, 100 at 1778 Fisher, 141 Ariz. cutters”); compare key those reading of dissenting) (disjunctive (heinousness and 686 P.2d “would aggravating circumstance in terms defendant used depravity upheld because on constitutional arguably be assailable Gillies, Supreme reverses Court When the Arizona I"). ("Gillies opinion) yet (supplemental oth affirms circumstance one ers, resentencing. v. State will remand for Gretzler, necessary than more violence was to rob or 135 Ariz. 659 P.2d kill his victim and victim had shown defend- 461 U.S. 971 [103 concern”), “generosity (1983)(“cru ant and with State 77 L.Ed.2d 1327] Johnson, elty” physical 147 Ariz. 710 P.2d involves infliction of (1985) (reversed pain on hei- and/or mental on victim and “de depraved though praved” nous and even murder and “heinous” kill involves [sic] mind). was senseless and victims had allowed de- er’s state of stay fendant with them for two weeks added). (emphasis panel Id. at 1195 and one of victims a childhood friend Supreme then cited four Arizona Court defendant); compare cases—all decided after Gretzler —to show Brookover, cruel, that the definitions of heinous and (1979)(not depraved 1324-25 cruel or even depraved applied have since been consist- where shot in the victim twice back—the ently. falling second time after to the floor and believe, however, analysis We that an crying out to the defendant —and later (F)(6) begin circumstance cannot and lot), in parking Bracy, abandoned with panel’s end with The Chaney Gretzler. (heinous- 145 Ariz. at 703 P.2d at 482 “appears” statement that Arizona to have depravity ness and affirmed where victim supported by limited citation to discretion— slashed); shot compare twice and throat only suggests total of five that it cases— Watson, 120 Ariz. at 586 P.2d at 1260 analysis deferred to Arizona’s of its own (not heinous, depraved cruel or even where analysis decisions. Our all Arizona’s back, victim shot four times in the the last penalty opinions death since 1973 leads us floor), time when face on the down with to a conclusion different from that Cha- Ceja, 126 Ariz. at 612 P.2d at 493 ney. (heinousness depravity affirmed where twice, victim shot then shot four more D. times). plainly Such cases demonstrate (F)(6) In summary, we conclude that the (F)(6) ap-

that the circumstance has been given has not been a suffi .circumstance plied arbitrary capricious in an manner ciently narrow construction the Arizona principles in violation of the most basic Supreme application Court such that its penalty jurisprudence. kept will be within identifiable boundaries. Among fifty the more than cases which

C. (F)(6) finding appealed, we are un The State contends that because distinguish rationally able to those cases previously upheld this court the constitu Supreme upheld which the Arizona Court (F)(6) tionality of Arizona’s circumstance finding from the few in which it did need not we address the issue. We dis legislative not. Because neither the stan agree. Lewis, In Chaney v. 801 F.2d 1191 properly dard nor case law has chan Cir.1987), (9th challenge we considered a decisionmaking imposition neled on the (F)(6) application on its both face and its heinous, “especially depraved” cruel or judge panel to the defendant. A three circumstance, we find that (F)(6) concluded that the circumstance was arbitrarily this circumstance has been not unconstitutional because capriciously applied by the Arizona courts. appears to Because the Arizona Court re

[t]he sufficiently appropriate have channeled turns a case trial court prevent arbitrary capri reweighing discretion to it reverses at least when capital sentencing cious decisions. The one of several circumstances court has defined each of the factors set found the court and there are lower 13-703(F)(6). circumstances,43 see, mitigating e.g., forth section See State Wal VI, any infra, In section we hold that the sion that Adamson failed to establish miti- give proper gating consideration to Adamson's circumstances does not bar reconsidera- did mitigating judge’s evidence. Thus the conclu- tion. (1983). 239; Cases, 58 N.Y.U.L.Rev. lace, (“the recognized 822 F.2d at 1482 has that there is an Cartwright, Court accord aggravating cir of an guiding function the particular “essential difference” between capital punishment in a state’s cumstance the sentencer determines care with which of reliance the effect determines system evidence, weight to accord and much how aggravating cir unconstitutional upon an predicate as a to considera requiring that court cumstance”), the district we reverse evidence, true tion of it must be found that grant the with instructions to and remand doubt, some beyond reasonable State, corpus unless the writ of habeas evidentiary standard. other See Cool time, resentences reasonable within States, United Adamson. Thus, 354, 357, 34 L.Ed.2d 335 beginning Car with Woodson North VI. statutory olina, has struck down the Court requires Thus, the Constitution it is clear sentencing which or re schemes excluded consid- assure individualized that a statute mitigating of evi stricted consideration for de- through specific guidelines eration 96 S.Ct. at dence. U.S. See aggravating cir- of termining the existence Stewart, Powell, and Ste (opinion of mandate, The Constitution’s cumstances. vens, JJ.) (“[A] process that accords no aggravating cir- however, limited to is not of the char significance to relevant facets sentencing scheme capital A cumstances. record of the individual offender acter and individualized must assure also particular of of the or the circumstances considera- through provisions for the both fixing from consideration in fense excludes in its as- mitigating evidence and tion of possi of death the punishment ultimate the persua- ultimate burden signment mitigating compassionate or bility of appropriate death is sion as to whether stemming frailties from diverse factors penalty. humankind.”); v. Loui see also Roberts areas the in these two hold that We 325, 333-34, 96 siana, 428 constitutionally flawed. statute Arizona (1976) (opinion of Eighth and Four- violates The statute Stevens, JJ.) Powell, (a stat Stewart, and (1) that teenth Amendments “meaningful opportunity ute must afford considering all from precluded are courts mitigating factors for consideration deter- mitigating evidence pertinent when par of the presented by the circumstances penalty, and appropriate mining the by the attributes ticular crime places burden impermissibly statute Ohio, offender”); Lockett individual prove the existence defendant 2954, 2964, L.Ed. sufficiently sub- mitigating (sentencer (1978) (plurality opinion) 2d 973 thereby imposing leniency, to merit stantial considering, as precluded from may “not be appropriate is the that death presumption a de any aspect of factor, penalty. any of and or record fendant’s character offense that the circumstances A. for a sen as a basis proffers defendant consistent death”) origi (emphasis in less than tence Eighth Fourteenth that ly held nal). in a require the sentencer Amendments restricting the has held The Court rele all free to consider case to be capital all ability to consider relevant sentencer’s determining appropri vant evidence “creates the risk mitigating evidence “[penalties in This is because penalty. ate spite imposed in will be miti ultimately turn on will capital cases severe for a less may call of factors which abili on the advocate’s gating evidence life choice is between penalty. When present evidence.” ty to marshal unacceptable and death, risk Goodpaster, The Trial Life: Effective commands incompatible with Penalty in Death Counsel Assistance of Thus, Eighth Fourteenth Amendments.” it is well established that the Con Lockett, requires weighing stitution at 2965. that the of all 438 U.S. S.Ct. mitigating against aggra relevant evidence principle, the Applying this Court Ed vating circumstances. Id. See also Turn Oklahoma, 104, 102 dings v. 28, 34, Murray, er vacated a death (1986)(“our 90 L.Ed.2d 27 cases court sentence where the trial had refused every capital establish that sentencer must weigh against aggravating circum weigh mitigating be free to relevant evi State, mitigating by stances established deciding impose dence before whether to regarding traumatic events dur evidence ”) penalty (citing the death Eddings ... ing childhood. The the defendant’s Court Lockett) added).44 (emphasis This is not stated that “the trial did not evaluate however, permitted, capital under Arizona’s mitigation and find it want evidence sentencing scheme, applied by as its courts. fact; ing as a matter of rather he found applied by Section the Arizona that as a matter law he unable courts, yielded three-stage sentencing has even to consider the evidence.” Id. at First, process. the state must offer evi (emphasis original). at 876 beyond dence to establish a reasonable this limitation violated the Court held that aggra the existence of one or more doubt rule set forth in Lockett: vating circumstances. See State Jor may Just as the not statute dan, 614 P.2d preclude considering the sentencer from (1980) (“Jordan II”); LaGrand, see also factor, any mitigating may neither 153 Ariz. at If at 576. consider, sentencer refuse to as a matter court finds such circum law, any mitigating relevant evi- stance^), of dence the defendant must then offer sentencer, and the .... Court mitigating pre evidence to establish review, Appeals may of Criminal de- ponderance of the evidence the existence given weight termine the to be relevant any circumstance(s).45 mitigating Finally, mitigating they may evidence. But weigh court must cir give weight by excluding it no such evi- cumstance^) against mitigating circum dence from their consideration.... On stance(s).

remand, the state courts must consider The constitutional defect at issue lies in mitigating all relevant evidence and stage the second of Arizona’s weigh against the evidence process. When the defendant offers evi- aggravating circumstances. mitigation stage dence at the of the sen- 113-15, 102 S.Ct. at (emphasis tencing hearing, 876-77 the court must make two added). determinations before it moves onto the directly considering potentially 44. The never ad- sentencer from such bar, constitutionality requiring dressed the influential evidence is to as a matter ... law, evidentiary mitigating defendants overcome an hurdle as consideration of all evi- they attempt to establish the existence of miti- dence and influence and thus to violate Lock- gating Marshall Eddings. circumstances. Justice dissent- only ett and Such a result can en- present- ed to the denial of certiorari in a case hance ‘the risk that the death will be ing precisely explained prob- this issue. He may imposed spite of factors which call for by placing created such a lem burden on penalty.’ a less severe 900, 902-03, defendant: Stebbing Maryland, (1984) (Marshall, [M]itigating easily proved factors ... are not S.Ct. J., certiorari) disproved. dissenting (empha- Each one rests on evidence from denial of Lockett, easily might original) (quoting influence the conclusion that sis in 438 U.S. at proper, (plurality opinion)). death is even if that evidence does not S.Ct. at 2965 conclusively prove statutory mitigating result, Risley, Coleman v. 839 F.2d Contrast factor.... As a the sentencer would be Cir.1988) (“Nor (9th under Montana law is the considering any prevented the evi- from existence of circumstances a fact dence adduced in an to meet the burden effort ‘proved presumed’ in obtain- proof, permits which must because the statute consider- of ation imposing ing sentenc- only proved by prepon- a conviction or even in of the factors ing.”). preclude of the evidence. To derance Woodson, Roberts, Lockett, First, Eddings, it must determine stage. weighing mitiga is relevant to in sentencing whether the evidence Turner reaffirmed that a question in the If it answers tion. weigh mitigating court must all relevant affirmative, decide whether then it must against the evidence circum- proves, by prepon a presented the evidence Thus, process by stances. the established derance, mitigating circumstance or that a the Arizona death statute is uncon- Contrary to the dissent’s factor exists. stitutional as a matter of law. question the court’s implications, we do not ability to determine the relevance Rather, B. presented. objection our

evidence in that once evidence is deemed lies the fact We also hold A.R.S. 13-703 un § mitigation, in Arizona it not relevant to will face, constitutional on its to the extent that aggravating cir weighed against the be imposes presumption it a of death on the cumstance^) unless that evidence estab statute, any defendant. Under the once by prep mitigating lishes a circumstance a single statutory aggravating circumstance Pulaski, Capital Sen See onderance.46 established, has been the defendant must (“Under at 44 tencing, 1984 Ariz.St.L.J. only not establish existence of a miti sentencing legislation, a current Arizona circumstance,47 gating but must also bear consider claimed events judge cannot nonpersuasion any mitigat the risk of that mitigation in unless proffered conditions ing outweigh ag circumstance will not proof standard of by required satisfied gravating circumstance(s). Gretzler, occurred.”). fact, they, in See (A.R.S. 135 Ariz. at 659 P.2d at 13 Thus, precluded Arizona courts are 13-703(E) miti requires that the court find § that, weighing mitigation from evidence of gating outweigh aggravat evidentiary stan- satisfying the while not ing impose circumstances in order to life dard, may give the sentencer nonetheless sentence).48 The clause in the relevant appropriateness of reservations about the “sufficiently to call substantial imposing a sentence of death. This exclu- statute — leniency” imposes presumption weighing at the sion of relevant evidence —thus stage principle established of death49 once the court found violates jury suggests proceeding wherein the was re- 46. The dissent is in error when evidentiary imposed upon quired questions. the de- standard to answer certain The statute evidence, preclude signifi- not but rather fendant does differs from Arizona’s in two Jurek evidence, distinguishing First, those phrasing ques- sifts between respects. cant mitigating from those which are jury facts which are required tions asked in Jurek to make fact, separation mitigating from not. non-mitigating In findings against specific the defendánt before accomplished evidence is when imposed, allowing death sentence could relevancy the court makes a determination. presumption in favor of the defendant. In con- Thus, mitigation, are relevant to if facts found trast, prove Arizona forces a defendant to mitigating precluded facts are indeed then those leniency.” or her More- his over, situation "merits weighing stage if the defendant is from the Jurek, all evidence was ad- evidentiary imposed burden unable to meet the jury answering missible for the to consider by the Arizona statute. 271-73, 275-76, questions. U.S. at Only jury 2958. if the answer- Gregg, 428 U.S. 47. Contrast affirmative, questions in the could a death ed all constitutionality upheld the Court where sentence result. Id. at at 2955. Georgia statutory scheme enacted the legislature stage balancing in which occurred Thus at the response Georgia’s to Furman. ultimately determine whether death was the system required finding at the sen- bifurcated appropriate penalty, all relevant evidence was statutory aggravat- tencing phase of at least one See id. at 96 S.Ct. at 2958 considered. ("What ing could circumstance before a death sentence is that the have before it is essential 96 S.Ct. at 2936. be considered. Id. possible relevant information about the indi- all However, in contrast to the Arizona scheme defendant whose fate it must deter- vidual issue, (the Georgia require the sentencer did mine.”). jury) any mitigating find circumstance in "to mercy make a recommendation of order to "requires presumption the [sentenc- 49.Arizona’s binding on the trial court....” presumed unless the de- [fact] to find the er] lurek, persuades that such a upheld fendant the [sentencer] the Court a Texas Franklin, finding provided separate Francis v. penalty statute which unwarranted.” for a See, aggravat- e.g., Shuman, single statutory stitutional. Sumner v. any existence ing circumstance. L.Ed. (1987); Roberts, 428 2d 56 U.S. at Circuit held in

Recently, the Eleventh 3005-06; Poulos, (11th 96 S.Ct. at see also 1469 Man 837 F.2d Dugger, Jackson v. Cir.1988), presumption Punishment, of death vio- Capital datory Ariz.L. The trial Eighth the Amendment. lates terms, (“In simple at 232 the cruel and Rev. penalty Florida’s death judge, applying punishments requires clause indi unusual presume statute, the had instructed sentencing capital punish for vidualized recommended as the that death was to be ment, mandatory penalty death stat mitigating penalty if the cir- appropriate idea.”). by very reject utes definition outweigh aggravat- the did not cumstances precluding In addition to individualized Examining jury in- ing the circumstances. sentencing, presumption of structions, death con Circuit held that the Eleventh appropriate is the presumption that death requirement flicts with the that a sentencer by “tilts the scales impermissibly sentence faced the ulti have discretion when with aggra- is to balance which the [sentencer] determination of constitutes the mate what mitigating in fa- vating and circumstances Comment, appropriate penalty. See Dead court the Id. at 1474. The vor of state.” ly Capital Harmless Error Mistakes: presumption of death further held that a 740, Sentencing, U.Chi.L.Rev. sentencer, employed “if at the level of the (“The (1987) authority sentencer’s to dis the individualized deter- vitiates pense mercy punish ensures that the ... Eighth Amend- required mination ment fits the circumstances of individual ment.” at 1473. interests.”). society’s and reflects the case “requires consideration The Constitution 13-703(E) Arizona Revised Statute § of the character and record of the individu- reads, part: in relevant “the court ... shall the circumstances of the al offender and offense,” Woodson, impose a sentence of death if the court particular 428 U.S. 2991, 304, punish- 96 S.Ct. at because the aggravating cir- finds one or more of the “unique severity of death is in its ment and that there are no miti- cumstances ... 187, irrevocability,” Gregg, gating sufficiently circumstances substan- 2931, there S.Ct. at is “funda- because Thus, leniency.” for Arizo- tial to call underlying respect humanity mental for ap- presumes na statute that death is the Woodson, Eighth Amendment.” 428 propriate penalty the defendant unless can 304, (citation at 2991 omit- U.S. at 96 S.Ct. sufficiently presumption this overcome ted). facing possibility A defendant mitigating imposing In with evidence.50 right has the to an assessment of the death presumption, precludes the statute appropriateness penalty of death as a sentencing required by the individualized person the crime the was convicted of. It also the sentenc- Constitution. removes Thus, Supreme Court has held that ing judge’s by requiring discretion statutory schemes which lack individual- judge to sentence the defendant to death if evaluation, thereby functioning to im- ized penalty, mitigating pose mandatory are uncon- the defendant fails to establish outweigh aggravating 314 n. 105 S.Ct. 1971 n. stances circumstances. (1985) (citing Thus, Sandstrom v. Mon constitutionality 85 L.Ed.2d 344 tana, of the Montana and 510, 517-18, 2455- statutes, 442 U.S. Texas death see Jurek v. Texas, (1979)). 61 L.Ed.2d 39 428 U.S. 96 S.Ct. 49 L.Ed.2d 929 (1976), Risley, 842 F.2d 1525 McKenzie erroneously suggests our 50. The dissent (9th Cir.1988), both of which contain the word creates a conclusion that statute sentencing provisions, way “shall” in their in no substantially presumption of death is based on position undermines our as neither of these 13-703(E). presence the word "shall" in § require mitigating the court to find statutes cir fact, primarily In it is not the word "shaU" that outweigh aggravating circumstanc cumstances conclusion, but rather the fact leads us to our es. statute, that under the Arizona the death sen imposed mitigating unless circum tence will addition, evidentiary acknowledging while requisite outweigh standard, places 13-703 which A.R.S. burden on the § Arizona v. circumstances. See Rumsey, prove mitigat defendant to the existence of ing circumstances which would show that (“death im (1984) must be person’s leniency, situation merits one circum Poland, posed if there is suf no circumstance

stance and aff'd, (1985), leniency”); ficiently to call for substantial sug the State Jordan, State gests that its statute does not violate the (“Jordan III”) (§ 13- (E) Eighth Amendment because subsection penalty if no miti requires 703 the death requires aggravat the court to the balance exist).51 gating circumstances ing against mitigating the circumstances may that before conclude death is the holdings its relies on the of The State appropriate penalty. While the statute assignment of the that the statute’s courts require balancing, does it nonetheless de not violate the Consti proof of does burden prives the sentencer of the discretion man rea Arizona tution. The by the dated Constitution’s individualized has been that the defendant sons “[o]nce sentencing requirement.54 This is because doubt, guilty beyond a reasonable found ag mitigating in situations the and where by requiring process is not offended due or, balance, gravating circumstances are in mitigating cir to establish the defendant give where the the mitigating circumstances Richmond, Ariz. at 136 cumstances.” still fall court reservation but below reasoning falls P.2d at 61.52 Yet this circumstances, weight of the is, of the real issue—that whether short imposing the statute bars the court from in of death that arises presumption favor Thus, pre sentence less than death. requiring prove from that the defendant sumption preclude can individualized sen outweigh ag mitigating circumstances that tencing operate as it can to mandate a death circumstances, federal gravating offends sentence,55 “[presump that we note mandating process by effectively due in proceedings tions the context of criminal death.53 bearing proof in a 51.Compare Kemp, of the burden of resulted Peek v. 784 F.2d denied, Cir.) (en banc), leniency. (11th presumption of (1986) (noting that 107 S.Ct. Court has held that the state 52. As Georgia, sentencer has "absolute discre required prove constitutionally is to an ab- mercy regardless grant existence tion to factors, question mitigating of we do not sence Lucas, evidence”) Gray ‘aggravating’ with of constitutionality requirement of the bare Cir.1982), (5th rt. 677 F.2d ce support bring forth evidence in that a defendant 1886, 76 L.Ed.2d 815 mitigation. (1983) (noting Mississippi, "even if the that jury finds that presumption of death is 53. The fact that the circumstances, mitigating outweigh it is not probably not cure the infirmi- rebuttable ty would penalty”). required impose the death brought by about of a death sentence recently Francis, panel of this circuit considered presumption. A 471 U.S. at See penalty imposed man- death statute whether a S.Ct. at 1972. by placing datory the burden of death sentence requirement individualized 54. The proving circumstances on the defend- penal- squarely predicate on the posing to that of the rests ty ant. While an issue similar Kincheloe, bar, qualitatively from a is different Campbell F.2d of death case long. (9th Cir.1987), imprisonment, distinguishable. however is In sentence Death, finality, language differs more from life Campbell, in its this court examined the 100-year prison imprisonment term Washington’s penalty than death statute and its con- only year or two. Be- differs from one of courts. We concluded struction the state difference, qualitative there is a language clearly indi- cause of corresponding of the statute “[t]he in the need for relia- proof difference the burden of is on the state cates that bility death is the the determination that jury beyond a reasonable doubt ‘convince’ punishment specific case. appropriate in a mitigating circum- there are not sufficient (foot- Woodson, U.S. at leniency.” (empha- Id. at 1466 stances to merit omitted). added). note We further found that the state’s sis traditionally have been viewed as constitu- reverse the district court regard with to the Jackson, tionally suspect.” F.2d issue prosecutorial vindictiveness Sandstrom). Francis (citing remand with instructions conduct an evi- dentiary hearing on that issue. Thus, we hold that statute, III, In Part we reverse the district court which imposes a presumption of death, and hold that penalty death was im- unconstitutional aas matter of law.56 We posed arbitrarily, reverse Eighth district violation of the court and remand with instructions grant Fourteenth the writ Amendments. We habeas remand corpus unless the State, within a district reason court with instructions time, able resentences grant Adamson to a sen the writ of corpus habeas unless the tence other than death. State, within a time, reasonable resentenc-

es Adamson to a sentence other than death. IV, Part we hold that the Arizona VII. statute deprived Adamson of The final issue we must address right ato decision the elements whether certain hearsay statements admit- crime, in violation of the Sixth and ted the trial court violated the Confron- Fourteenth Amendments. We reverse the tation Clause. We hold that the state- district court on this issue and remand to ments were improperly admitted but that the district court grant to the writ of habe- the error was harmless for the reasons as corpus unless State, the a within reason- stated Adamson v. Ricketts, 758 F.2d at in time, able imposes a sentence other than 445-47. death. V, In Part we hold state, that the in CONCLUSION violation of the Eighth and Fourteenth II, In Part we affirm the Amendments, court district has failed to ag- define the the issue judicial of vindictiveness. gravating We circumstances set forth in A.R.S. Stevens, 55. Justice writing in Smith v. North tion appropriate that ‘death is the punishment Carolina, 74 L.Ed. specific in a case.’ (1982) (opinion 2d 622 respecting the denial of (quoting Id. Carolina, Woodson v. North petition certiorari), the for voiced the same ob jections to a North penalty Carolina death in (1976) (opinion Stewart, of and Powell Ste- operated struction that in a manner similar to vens, JJ.)). Smith, the Arizona statute. In jury the impose instructed to the death if it 56. One argued commentator has "the same (1) found that one or aggravating more circum dictates policy" of text and that ensure the de existed, (2) stances one aggravating or more fendant presumption innocence, a of "apply circumstances sufficiently were substantial to equal, greater, with if not require force” to a call for penalty, (3) the death aggra and that the "presumption Note, of life.” Presumption vating outweighed circumstances mitigating the Starting A Point a Due of Process Life: circumstances. Id. 103 S.Ct. at 474. Analysis Capital Sentencing, L.J. Yale Justice Stevens noted that such instructions Basing argument her not on the may jury lead a to required it is believe Eighth Amendment, but rather on the Due Pro initially question answer the of whether the cess Amendment, Clause the Fourteenth she aggravating circumstances, alone, considered notes: imposition warrant the of the penalty, death capital decision, sentencing like the deter- respond and then to question to the of whether guilt mination of capital and typical unlike the aggravating the non- outweigh the mit- decision, sentencing igating binary. Just as circumstances. Justice Stevens then ar- the gued: jury criminal trial must choose to convict acquit, capital It might the entirely seems to me possible authority that a must impose answer choose to questions imprison- both those either life affirma- tively yet and feel ment comparison penalty. or the contrast, death In totality of the aggravating noncapital, sentencing factors authority with usually the can totality mitigating factors leaves strike a it in balance doubt between conflicting the inter- proper as to penalty. the penal- But the parties death ests of by adjusting length ty can be constitutionally imposed only severity if noncapital sentence. procedure reliability assures in the determina- heinous, vindictiveness, in violation 13-703(F)(6) prosecutorial cruel or (especially § Fourteenth Amendment’s Due Pro- application its will be of the so that depraved) Clause; (2) capri- We in arbitrary identifiable boundaries. cess and kept within manner, Eighth court and remand with in the district cious violation of reverse grant Amendment; (3) writ of habeas right instructions in violation of State, reason- within a corpus unless cir- by jury trial because time, in accord- resentences Adamson able Arizona death cumstances factor set forth with the rule ance element of penalty statute functions as an Gillies, crime; (4) pursuant to the Arizona death banc), (1983) (en (supplemental opin- statutory sentence circum- ion). factor, heinous, depraved, stances cruel or adequately channel which fails VI, Arizona hold that In Part we discretion, judge’s violation Eighth penalty statute violates Amendment; (5) Eighth pursuant (1) Amendments and Fourteenth pre- sentence statute which Arizona death precluded from consid- courts are meaningful consideration of all miti- cludes evidence, ering all relevant evidence, imposes presump- gating defend- (2) proof placed on a the burden of death, Eighth in violation of the tion that death is the presumption creates a ant Amendment; after the admission at the dis- appropriate penalty. reverse We evidence, in hearsay trial of certain viola- and remand with instructions trict court tion of the Constitution’s Confrontation corpus of habeas unless grant the writ Clause. time, imposes a State, within a reasonable other than death.

sentence agree majority’s holding as it I with the vindictiveness, issue judicial relates to VII, although cer- we hold that Part erroneously any hearsay statements admitted at trial hearsay statements tain Thus, harmless, harmless. I concur in error, admitted were the error was constituted majority’s decision to affirm the district court on the we affirm the district and thus However, grounds. I court on those two that issue. analysis, difficulty majority’s have with part, court in AFFIRM the district We holding it relates disagree with its and in- part, and REMAND with REVERSE issues, remaining prose- issue 1 as to to the structions. issues 2-5. cutorial vindictiveness and Thus, from the ma- respectfully I dissent BOOCHEVER, Judge, Circuit to) (and remand jority’s decision to reverse concurring: grounds. on these five the district court judge’s I not believe that the trial do points disagreement will be dis- My five of to a term of prior of Adamson in turn. cussed degree pur- murder years 48-49 for second for plea bargain a is a valid basis suant to I.

holding imposition of the death sen- tence, subsequent breach PROSECUTORIAL VINDICTIVENESS for first agreement and after conviction murder, arbitrary capri- degree and and sen- Adamson’s second conviction cious. Process Clause not violate the Due tence do prosecutorial vindictiveness. as a result BRUNETTI, Judge, with Circuit bring increased prosecutor cannot A BEEZER, ALARCON, and whom exer- charges in retaliation to a defendant’s THOMPSON, Circuit DAVID R. right. Blackledge a constitutional cise of concurring dissenting: Judges, join, 94 S.Ct. Perry, 417 U.S. (1974). appear- The opinion and de- majority The identifies enough to consti- appeal: ance of vindictiveness issues in this whether cides six process due of law. Id. imposed, tute a violation of sentence was Adamson’s death States v. at 2102. United or S.Ct. judicial result of vindictiveness as a 368, 378, years, incarceration of 48-49 with total Goodwin, 102 S.Ct. months, years and 2 and that (1982). Adamson had time of 73 L.Ed.2d imposed. sentence was Ricketts v. Adam agreement after he had plea entered into son, 'prom at 2682-83. Adamson degree murder and charged for first been any “testify fully completely being select- ised to his trial was while Adamson, Court, Federal, requested when U.S. Ricketts ed. authorities, par against any and all proper The in the murder of Don in much differ- ties involved plea bargain puts the case ” consequences majority describes: Bolles.... Id. posture ent than the promised Adamson should he not do as prosecutorial vindictiveness In [the agreement: clearly spelled out in the were dealing the Court was with cases] agreement The terms of the could imposition of a State’s unilateral respondent’s in the clearer: event chosen to upon a defendant who had testify, occasioned a refusal to breach origi- legal right to attack his exercise a parties would be returned to sta- “very differ- situation nal conviction—a quo tus ante.... give-and-take negotiation ent from the bargaining plea between common recog- at 2685. The Id. defense, arguably prosecution and which consequence nized that disallow pow- relatively equal bargaining possess original degree charge first murder er.” agree- reinstatement would “render meaningless.” They ment at 2686. Hayes, Bordenkircher recognized further that Adamson knew 663, 667, 54 L.Ed.2d 604 promise consequence of a breach of the Carolina, 397 quoting Parker v. North with that awareness breached the contract. 1458, 1480, 25 (1970). In the context of a L.Ed.2d could submit the State’s [Adamson] bargain, prosecutor may retrial, use the plea request testify that he at the charges plea of increased to secure a doing provid- threat in so risk that he would be Bordenkircher, agreement, agree- ing testimony pursuant presence 98 S.Ct. at and the obligation provide, ment he had no plea agreement dispels any possibility here interpretation he could stand on his prosecutorial vindictiveness. rein- agreement, knowing he were if provision plea agreement statement wrong, agreement his breach simply enforcing the means of the was parties origi- to would restore the their promise testify that Adamson had made to position prosecuted and he could be nal “fully completely”. and degree murder. for first Adamson, Supreme

The Court found that Adamson at 2686 Ricketts v. added). 2684-85, voluntarily intelligently (emphasis had and entered also at See Id. plea agreement par- (Supreme into the where “both n. 3. Court declined to “second bargained guess” finding ties for and received substantial the Arizona Adamson, plea agree- benefits.” Ricketts v. 107 S.Ct. that Adamson had breached his ment). agreement n. specified at 2685 and 5. Once a defendant volun- in two tarily intelligently plea separate paragraphs consequences into and enters the that agreement, only escape he or she can its from Adamson’s of his would flow breach consequences plea promise. paragraph if the induced was Id. at 2685. the prosecutor agreement provides offer from the that is not forth- that if Adamson re- coming fully testify, agreement or if the defendant not was fused to “this entire consequences. apprised Mabry original charge of its v. null and and the void will Brown, 504, 508-510, automatically 104 S.Ct. be reinstated.” Adamson 2543, 2546-48, Ricketts, (9th Cir.1986) 789 F.2d Here, A) added). prosecution through (Appendix (emphasis the came with Para- exchange: they agreed graph provides its to a the second de- event this “[i]n gree charge void, murder agreement with a fixed becomes null and then the sentence testimony cause positions Adamson’s was central to to the be returned parties shall Id. agreement.” against the in before convictions and Dun- they were Robison under- “unquestionably Adamson at 732. lap, that testify Adamson’s refusal to vio- provisions.” these meaning of the stood Dunlap’s right lated Robison’s and to con- Adamson, at 2685. Ricketts and their frontation reversed convictions. Therefore, into a entered valid Adamson 105-06, Dunlap, 125 Ariz. at 608 P.2d at agree- then plea agreement, breached 42-43, Robison, at void, in rendering null and and ment State, point, P.2d at 46-47. The at that did agree- terms of the with the accordance attempt penalize for not to Adamson his charge degree murder was ment the first promise, they however did seek broken reinstated, subjecting him automatically cooperation testimony for Adamson’s against him charge that was same Dunlap’s Only retrial. after Robison’s for) (and midst of trial that he was the testify Adamson refused to and demanded agreement. he entered the when agreement did the state declare a new following testify offer to Adamson’s plea agree- Adamson to be breach of up- which Supreme court’s decision Arizona Adamson, 107 S.Ct. at ment. Ricketts v. agreement, and held that plea held the Adamson, through attorneys, 2683. his reinstate- and that the there was a breach challenged agreement and his obli- valid, could not “cure” provision ment gation testify, again breaking prom- his to the breach. Id. completely.” testify “fully ise to following is of no moment [I]t agreement challenging After all Supreme Court’s decision Court, way to the Arizona comply with offered [Adamson] however, agreed testify, Adamson then agreement. point, At this terms of the duty point prosecution had no at this second-degree murder con- [Adamson’s] agreement, plea enter into a already had been ordered vacated viction Weatherford original charge reinstated. The Bursey, agree that parties did not (1977). Further, [Adamson] 846, 51 L.Ed.2d consequences from the would be relieved to enter into a prosecution had no incentive if testify of his refusal to he were able had agreement with someone who second argument that a tes- a colorable advance (the testify promise twice broken obligation owing. timonial to receive from only the state was benefit parties could have struck a different bar- dropping exchange its first Adamson gain. ... charge accept- trial and degree and murder added). Thus, Id. at 2687 (emphasis Adam- degree plea murder with a ing a second testify point was an son’s offer to sentence); specific and who had caused bargain. The dissent in for a offer new conspirators, against cases the other Robi- Ricketts v. Adamson why prose asked (the plea Dunlap, object of son and up on did not take Adamson his new cution Adamson had agreement) to be reversed. n. 13. Adamson had offer. challenging first no reservations promise This his twice before. broken majori- as the agreement as it unfolded and the con majority opinion notes that court’s 1020, (maj. op. 12), recognizes n. ty Dunlap support the of Robison and victions guarantee that could not state obtain fully that Adamson testified and conclusion truthfully, testify fully or Adamson would Maj. op. at prosecution. credibly for fact, and, not. The state did have he did However, Robison’s and the reason of the first by recourse the reinstatement Dunlap’s reversed convictions were agree- degree charge under the murder Adam- Supreme Court was because made the offer to ment. When Adamson key question on to answer a son refused testify the second time he had promise to Dunlap, 125 State v. cross-examination. degree of first not been tried or convicted 104, 41, (1980); 42 Ariz. murder, guaranty had no and the state 44, 46(1980). Robison, 107, 608 125 testimony. full or truthful found that The Arizona be- 1048 Proffitt, agreement 252,

Under of the 2966; Adamson’s view 428 U.S. at 96 S.Ct. at reinstatement, Gregg, 199, there no could be automatic 428 U.S. at 96 S.Ct. at 2937. rendering any thereby provi enforcement By narrowing capital its definition of plea agreement meaning sions of a new murder, essentially Texas has said that escape less. If Adamson were allowed there must be at least one statutory ag- provisions original the enforcement of the gravating first-degree circumstance in a plea agreement agree it would “render the murder case before a death sentence Adamson, Ricketts v. meaningless.” ment may even be considered. But authoriz- plea 107 2686. As the S.Ct. at law favors ing bring the defense to jury before the agreements, Bordenkircher, 434 U.S. at separate at the sentencing hearing what- 363-64, 668, Adamson 98 S.Ct. should be ever relating bargain held to his and suffer the conse adduced, the individual defendant can be quences voluntary of his breach. Texas has sentencing ensured that adequate guidance will have to en-

II. perform able it to its sentencing func- By tion. providing prompt judicial re- ARBITRARY AND CAPRICIOUS jury’s view of the decision in a court with A “arbitrary sentence of death is and jurisdiction, statewide provid- Texas has capricious” Eighth under the Amendment promote ed a evenhanded, means to suitably if it is not directed and limited. rational, and consistent imposition of Gregg Georgia, v. 153, 189, 428 U.S. death sentences under law. 2909, 2932, (1976). S.Ct. L.Ed.2d Texas, Jurek v. 428 U.S. 96 S.Ct. expressed The concerns in Furman v. (1976). 49 L.Ed.2d 929 Since Georgia, U.S. Furman, court has insisted (1972) L.Ed.2d channeling limiting imposed arbitrary death not be in an imposing sentencer’s discretion in the death capricious manner carefully are met penalty is a fundamental constitutional re- drafted statute which ensures that the sen quirement for sufficiently minimizing the tencing authority given adequate infor wholly risk of arbitrary capricious ac- Gregg, 428 U.S. at guidance. mation and — Maynard Cartwright, v. tion. U.S. safeguards 96 S.Ct. at 2935. The es -, 108 S.Ct. 100 L.Ed.2d 372 in Gregg Georgia, v. poused 428 U.S. (1976), 96 S.Ct. 49 L.Ed.2d 859 Prof Florida, 96 S.Ct. arbitrary This capricious argument fitt Texas, (1976), 49 L.Ed.2d 913 Jurek usually applied analyzing statutory when schemes, 96 S.Ct. sentencing and the 1976 Cases Carolina, (1976), Woodson v. North analyzed the statutory schemes of five 49 L.Ed.2d 944 states legislative to see if their changes Louisiana, Roberts v. after Furman were constitutional. (herein 49 L.Ed.2d 974 majority cases the proposition cites for the Cases”), after the “1976 are standards for may sentence of death not be im- guide statutes that posed by authori in an arbitrary capri- ty including weighing aggravating and analyze mit cious manner requirements igating statute, weighing circumstances and them a not the actions of an individual against other, Ramos, providing each judge. E.g., for de California Gregg, appellate novo 992, 998-99, review. U.S. at U.S. 193-195, 96 S.Ct. at (1983) (discusses 2934-35. These cases constitu- determined the constitutionality tionality “Briggs Instruction” man- death after it was struck in down dated under sentencing California’s Georgia, 1972 Furman v. 238, in scheme); Gregg Georgia, v. 153, 408 U.S. 428 U.S. guidelines 188, 92 S.Ct. 2726. The should focus 96 S.Ct.

on the individual circumstances of each (upholding the constitutionality of case and on the Georgia’s sentencing scheme); individual defendant. Booth v. plea murder and then degree for a second 2529, 96 496, 107 S.Ct. Maryland, later, Adamson to -, he sentenced years three — U.S. 440, reh’g L.Ed.2d degree he first was convicted (1987) (preclud death after 31, L.Ed.2d 820 108 S.Ct. calls statement, majority the of context murder. Out impact a use of victim ed the any appears statute, arbitrary choice as a state this action to a pursuant mandated —but inquiry is made arbitrary the until unacceptable risk constitutionally penalty in an for the choice. and the impose the death context reasons may jury manner); Gardner capricious arbitrary or was judge the whether To determine Florida, 97 S.Ct. 430 U.S. v. look at necessary to “guided”, it is properly presentence (1977) (held that L.Ed.2d sentences he made the context which the sentencing process must be used reports situa- the two may he the differences between so that and to the defendant shown If the reasonable. report). they if rebutting the tions to see are present evidence logical in his and reasonable judge was ac Court, analyzing the The arbitrary not be he sentencing then would a constitutional judge, within of a tions Maryland, v. capricious. Booth scheme, the sentencing have used statutory the impose to (“[A]ny decision at 2536 S.Ct. framework. “judicial vindictiveness” be, appear to be and penalty must death 372-74, 102 Goodwin, 457 U.S. S.Ct. v. caprice than reason rather on based (1982), citing 73 L.Ed.2d neglects to con- emotion.”). majority The Hayes, 434 U.S. v. Bordenkircher sen- Adamson’s first fact sider the (1978). L.Ed.2d light the must be examined tence is, a defend cannot sentence a court That plea bargain. the existence he exer severely simply because more ant any trial or other constitu to right cised the four differences between There are Pearce, rights. North Carolina tional degree pursuant sentence murder second 395 U.S. im- the bargain and sentence plea the (1969). majority is char If the convicting Adam- jury the trial posed after an “arbitrary capricious” as acterizing 1) presence the degree murder: of first son discretion, have they would abuse plea bargain and or absence disparate sentenc more than much show Adamson; 2) the cooperation of degree of the trial to show They have ing. would sentencing two judge was fact adequate investi to conduct judge failed degree murder second crimes: different necessary for an intelli facts gation into murder; 3) that a degree fact and first sentencing the trial court’s gent exercise intervened on the merits full trial 511, Grier, power. sentences; 4) the fact the two between However, majority P.2d 309 if he notice that that Adamson judge trial the time the carefully notes could re- he plea agreement, breached de about considering the facts spent penalty. ceive case, investigating fendant and op. 1021. As Maj. at relevant facts. other Bargain. Plea 1. arbitrary ca that the suming arguendo plea accepting a judge The trial when by the Su analysis as announced pricious other- compromise, bargain accepting applied to an individual can be preme Court Mabry “bargain.” would wise it actions, necessary ask if the judge’s Johnson, S.Ct. carefully guided by a drafted judge was (1984). “Each information and statute, adequate if he had guilty advantages when may obtain side on the individual if he focused guidance, and conces- sentencing exchanged plea is and on the individ of the case added.) deciding (emphasis sions.” 193-95, 96 Gregg, ual defendant. bargain plea between accept whether 252, 96 Proffitt, 2934-35; 428 U.S. at Adamson, judge prosecution and states that majority to make decide whether had to point in at one “arbitrary” because made, decision was Once that concessions. case, year sentence approved a 48-49 he only plea great subject to abuse of discre- are accorded a measure of finali- Grier, ty. provisions tion. Id. Without enforcement (1985)(if plea bargaining agreements a sentence is within those accused statutory capital get plea limits it will be disturbed crimes would never discretion). bargain unless there is an abuse for a reduced crime or sentence Here, go Court found that both but would be “forced” to to trial be- parties bargained prosecutor for and received substan- cause the would have no bar- Adamson, tial gaining chip way agree- benefits. Ricketts v. to enforce the —no judge thus, S.Ct. at 2685. The trial exercised his ment and no incentive to enter into discretion and sentenced Adamson to the one. agreed upon by term Adamson and the prosecutor may constitutionally A threat plea agreement. state in the Adamson charges en increased to induce defendants might

thus secured lesser “a than entering plea agreements. into into Bor imposed guilty be if there awere verdict 357, 360-65, Hayes, denkircher v. judge jury.” after trial to Mabry, See 663, 666-69, (1978). 98 S.Ct. 467 U.S. at n. n. 8. “By hypothesis, pleas may have been plea agree When Adamson by promises breached induced of a recommendation degree charges ment the first murder were of a lenient sentence or a reduction of according charges, by reinstated to the terms of the and this fear of the possibility plea bargain. Adamson, greater Ricketts v. penalty upon 107 of a conviction after a (federal S.Ct. at n. 3 court on habeas trial.” Id. at 98 S.Ct. at 668. It finding cannot state courts disturb follows that if it does not violate Due Pro plea agreement). Thus, breach of the charges cess to threaten which defendant judge “plainly subject prosecution”, when the sentenced Adamson after then trial, pursuant process it cannot any carry it was not violate due out plea agreement sentencing threat. Id. at concessions at 669. —no had to Adamson was the midst of a trial Additionally, be made. for Adamson degree first prose murder when he and the testify deposition had refused to at a held cution struck their deal. Dunlap Robison, before the retrial of Ricketts v. Adamson, 107 S.Ct. at 2682. To reinsti- spite and in of what Adamson he said very charges already tute the he do, had been would what he had done was exhibit a for, being indicted on and was tried and to cooperation lack by breaching plea punishment upon suffer by conviction agreement refusing testify. Rick jury, cannot violate the Due Process Clause Adamson, etts v. 107 S.Ct. at 2683. If the nor as majority asserted anbe “arbi prosecution precluded from enforcement trary capricious” sentence. plea agreement of a and can rein never charges carry state penalty, sentenced two different plea bargains the usefulness of would be crimes. severely may undermined. Whatever world, the “situation in agreed an ideal plead fact Adamson guilty to sec- guilty plea that the and the degree often concomi ond plea bargain murder plea bargain tant important compo agreement. are Ricketts, Adamson v. country’s nents of this justice sys criminal accepted guilty F.2d at 731. The court administered, Properly they tem. plea postponed can acceptance ben but of the struc- Allison, (48-49 efit Blackledge all concerned.” years tured sentence with incarcera- months) years pending 52 tion time of 20 advantages receipt These can presentence review and re- only dispositions if by guilty port. later, be secured days Id. at 724.1 Four Ricketts, Appendix 3), 1. See A in Adamson v. time for was waived until the ¶ heavily (Id. 8), testimony F.2d at 731-32. The sentence was struc- conclusion of Adamson’s at If judges judge assigned tured to the circumstances. Adamson could not other than the to the case apply eligible parole may for or be until 20 calen- sentence in accordance with the terms of (Id. years passed agreement dar and 2 calendar months had are bound the terms of agreement sentencing range plea the entire life was the for second judge accepted murder). degree including the sentence. Id. appropriate November, 1980, of an sen- following

The determination In a full trial by jury of discretion requires unanimously tence the exercise which convicted to, degree among judge Adamson of first murder the given due consideration after imposed penalty. the death Ricketts v. things, charged, par- the other the crime Adamson, 107 at 2684. Thus when ticular circumstances the individual original charges the were reinstated purpose the court and the of a before against convicted, Adamson and he was the sanction, i.e., protection, penal societal judge charge had a different and conviction and deterrence.... Just rehabilitation him, in weighing aggravat before impose must free to as the court be ing under circumstances warranted, more severe sentence when degree scheme, sentencing first murder sentencing plea process must judge legislative had to meet different re leeway the court to consider a less- leave (see quirements. maj. op. A.R.S. 13-703 § justice so er when the facts and statute). at n. 2 for full text of Under require. requirements, judge those had to find an Meehan, Dominguez v. beyond circumstance a reason added). (1983) (emphasis weigh against any able doubt and miti judge’s appropriate- determination of gating 13-703(E); circumstances. A.R.S. § plea bargain’s on the stated ness was based Richmond, State v. 136 Ariz. degree charge

second murder which Adam- P.2d (1983)(state son had been “convicted” of after the court S.Ct. must accepted guilty plea. prove aggravating beyond not had his He was doubt). If charged degree mur- reasonable out or “convicted” of first weighed mitigating judge im had to judge at this time and the had to con- der pose sentence. A.R.S. punishment sider the suitable for the sec- 13-703(E). degree § murder crime for Adam- ond which Jenson, son had convicted. been legislative Under the Arizona mandate (1979) (a 597 P.2d 554 trial sentencing, judge the trial for must follow judge impose any has no discretion to sen- crime, guidelines depending certain on the statute). specified by tence other than that the circumstances and individual. Sen- The structured sentence which Adamson tencing degree for second murder under a speci- received was almost times that five bargain agreement plea is not the same as sentencing fied as the minimum in the stat- sentencing after a full trial on the merits ute effect at the time Adamson was degree Compare for first murder. A.R.S. degree sentenced for second murder. 13-703. 13-701 with A.R.S. § § A.R.S. 13-453. This is addition to the § 3. The trial on the merits. years fact that Adamson had to serve full effect apply and months before he could or be case, In discussed the effects a recent we eligible parole, gave up and that he sentencing of a full trial on the merits on right appeal and other constitutional Risley, 842 considerations. McKenzie v. Ricketts, rights. Adamson v. 789 F.2d at Cir.1988). case, (9th F.2d 1525 de- A). Furthermore, (Appendix 731-32 a sen- prosecutors fendant and the made a tenta- then, now, tence of death was not nor is it agreement subject plea tive to certain con- sentencing option judge an available for a second tingencies. Id. at 1536. The trial degree murder reluctantly approved proposal conviction. A.R.S. and set a 13-453; (1977) (in Later, plea. 13-1644 1977 when date to receive Id. § § sentenced, years prosecution Adamson was first advised defense counsel that (Id. 9), agreement original charges place were at null and void and ¶ (Id. 10), (Id. 11), changed may automatically Adamson could reinstated and Adam- ¶ ¶ appeal degree judgment from outside the State the second son would serve his sentence 14). (Id. agreement and sentence and if did the of Arizona he ¶ plea bargain there no would be and so no and considered the aggravating and miti- guilty plea Later, was entered. after gating circumstances of the crime. This is trial, judge full sentenced McKenzie enough to overcome the assertion that the Noting to death. that a sentence of death trial arbitrary capricious. must be based on reason rather than ca McKenzie, See 842 F.2d at n. 24. price (citing or emotion Gardner v. Flor ida, 97 S.Ct. 4. Adamson had notice he could receive (1977)), the L.Ed.2d Court stated the death penalty. the fact that the imposed sentence Adamson knew that if he breached the after a trial on the merits is more severe plea agreement he was at for risk the judge than one willing the accept as penalty. Adamson, Ricketts v. part bargain of plea “impeach does not S.Ct. at 2686. Adamson had a choice. He the legitimacy of the sentence” and that testify could requested by the State or judge the approved could have a settlement could stand on interpretation his [H]e of calling lighter for a sentence than he him agreement, the knowing that if he were self would impose. have chosen to Id. at wrong, his agreement breach of the would parties the restore original their the plea interval between negoti- the [I]n positions and prosecuted he could be sentencing ations and the proceedings, degree first murder. the judge trial opportuni- had numerous Adamson, Ricketts v. 107 S.Ct. at 2686. gain ties to additional upon information agreement The specifies in two separate which to base his decision. paragraphs consequences the that would presided He over McKenzie’s sixteen- occur if Adamson trial; breached. day-long Paragraph 5 heard the testimony of provides that if Adamson fifty prosecution witnesses, refused testi including fy, “this agreement entire

witnesses who testified null and great void detail original the charge about brutality crime, the of the will be automatical McKen- ly premeditation zie’s reinstated.” apparent Ricketts, Adamson v. other aggravating factors; A). F.2d at 731 presen- (Appendix the read Further Para investigation and, tence report; graph agreement 15 of the provides: most im- “in portant, received a agreement unanimous the event null becomes verdict finding void, guilty be- then the parties shall be returned to defendant yond a reasonable positions doubt two they were in before this of most punishable heinous crimes agreement.” under at 732 (Appendix A). Id. law. Montana recognized that to disallow the effect of this (emphasis added). “reinstatement” clause would agreement render the meaningless. situation Adamson’s case is sim- Adamson, Ricketts v. 107 S.Ct. at 2686. though ilar. Even Adamson’s breach of a They also found that the trial court careful plea agreement void, renders it it is as if a ly went over each and every provision of plea agreement had never been reached agreement with Adamson to ensure the and Adamson was back where he was be- requirements constitutional of an intelli fore the prosecution made their offer. gent and voluntary plea and thus Adam- “The agreement terms of the could not be son’s awareness and provi notice of each clearer: in the event respondent’s sion of agreement. Ricketts v. Adam breach occasioned testify, refusal to son, at 2685. parties would be returned to the status quo ante.” Also, Adamson, Ricketts v. attorneys Adamson’s in their letter S.Ct. at judge 2685. The trial presided April prosecutor advised the over the intervening trial between the fully tak- Adamson “is aware of the fact that ing and consideration plea agree- your office feel may that he com- ment and heard the testimony pleted obligations wit- under agree- the plea nesses, the jury rendered a and, unanimous ver- further, ment ... your may office dict, read presentence report, attempt plea withdraw agreement “toler- demands system, federal which may prosecuted he him, from [and] procedures spectrum of state first ance for a on a Bolles killing of Donald for the problem of law dealing a common with charge.” Ricketts murder degree under- enforcement.” Adamson at 2686-87. Adamson if he would be consequences what stood Pennsylvania, McMillan v. Therefore, the agreement. breached 91 L.Ed.2d nei- sentence of the death imposition Texas, 385 U.S. citing Spencer v. arbitrary, but surprise nor ther an unfair rational, logical, sequential just recita- interesting, majority’s Although testify his refusal result of predictable penal- history Arizona’s death tion acutely aware. Adamson was of which states comparison to other ty and its law punishment. bearing on this has no issue III. made it clear that has Supreme The Court any unwilling say that there “is to they are IN SENTENCING V. JURY JUDICIAL capital up its right a state to set way for CASES CAPITAL sentencing Spaziano, 468 scheme.” aggravating the holds that majority The 464, at 3164 omitted]. at 104 S.Ct. [citations stat- death sentence Arizona in the factor “capital the crime element of ute is an not 2. are Arizona’s factors of his Adamson thereby depriving murder” a crime. elements of The Maj. op. at 1029. by jury. right to trial some commenta majority and While the never a reaching for conclusion is majority eligibility crite death have tors found The his- Court. by the U.S. made crime, the separate ria is a its penalty law death tory of Arizona’s require did not not. The 1976 Cases pursued laws to other states’ comparison category of crime create a that states new aggravat- The majority is irrelevant. application in the ensure fairness by an factors considered ing mitigating Flor See, v. e.g., penalty. Proffitt sentencing are factors judge Arizona ida, 96 S.Ct. 428 U.S. jury. a tried to to be of the crime elements long as the (1976). So 49 L.Ed.2d goes be- Arizona statute Additionally, the ob scheme satisfies “twin sentencing of McMil- mandate the constitutional yond Cases, is constitu it the 1976 jectives” of requires that lan and 459, 104 at Spaziano, tional. beyond a reasonable proven factors be is that objective The first at S.Ct. 3161. doubt. penalty administer the state “must distinguish be rationally way can Penalty. a Death History the Arizona 1. for whom death individuals tween those penalty, Arizona’s death history of and those sanction appropriate through are gone changes it has 460, 104 at not.” Id. at it is whom applied long the statute so as irrelevant also “allow Secondly, it must Spa standards. constitutional here meets circum individual consider the sentencer Florida, ziano defendant, background, stances (1984). L.Ed.2d 104 S.Ct. Id. at and his crime.” jurisdic majority Also, fact that a Ohio, 438 U.S. Lockett v. citing than practice different adopted a tions have stan “common not offend Arizona does Eighth “The has been convicted decency.” Id. defendant After dards statute every time murder the degree is not first Amendment violated beyond prove from prosecutor different requires a conclusion State reaches ag statutory best to one over how doubt least majority of its sisters reasonable in order for laws.” Id. gravating its criminal circumstance administer maxi statutory consider the sentencer to formulat- have the States fact that [T]he v. Rich penalty of death. State mum punish statutory schemes ed different at 67. mond, of our merely a reflection felons is armed “distinguishing” This is the first re the presumption factor of innocence nor create quired. Second, the trial must con any other presumptions so as to relieve the sider proffered mitigating all circumstanc prosecution of its proving guilt; burden of es, the circumstances of the individual de it neither altered the maximum penalty for fendant, presentence any report any separate crime committed nor created a mitigation. other Knapp factors calling offense separate for a penalty; and Cardwell, (9th Cir.), F.2d operated only limit the court’s in selecting discretion penalty (1982). Lastly, aggra these range within already available to it vating factors and factors are special finding. with at 2417-18. weighed against each other to determine if passes Arizona statute muster under punishment should death. A.R.S. be. similar factors. It does not pre alter the 13-703(E). § sumption of prosecutor innocence and the Furman, No where in the concerns of prove must all degree the elements of first the 1976 did say Cases the Court that to beyond murder a reasonable doubt. The comply with the constitution had states degree for first “punish murder to include the punish- determination of the imprisonment able death or life pro as ment of death an element of an offense vided by 13-703.” A.R.S. 13-1105. § of a Gregg, crime. 428 U.S. at 96 Therefore, the maximum punishment for 2934-35; S.Ct. at Phelps, Lowenfield degree first murder is death. The method 231, 546, U.S. 108 98 568 S.Ct. L.Ed.2d establishing punishment that maximum (1988)(legislature may narrow definition of (A.R.S. 13-703) does not alter maxi § capital offense broadly or more capi- define penalty mum separate nor create a crime tal punishment offense and narrow deter- calling separate a penalty. McMillan, for mination findings with of aggravating cir- 106 S.Ct. at 2417. The statute limits the cumstances). Supreme If the had Court Court’s in selecting discretion penalty. a found that because death is different it 13-703(E); A.R.S. Zaragoza, § 135 required the states to create a new crime of 63, 69, Ariz. denied, 659 P.2d cert. “capital murder”, it would also ex- have Zaragoza Arizona, 1124, v. 462 U.S. 103 pressly held that the eligibility death ele- (1983). S.Ct. Al ments must jury. be tried to a it has This though is the punishment, harshest point not done. simply “The is Supreme Court has said the distinctions purpose of the death frus- not capital between noncapital by, with, trated or inconsistent a in scheme are not Spaziano, so clear. 468 U.S. at imposition which the of the penalty in indi- 461, 104 S.Ct. at 3162. The Arizona sen vidual cases by is determined a judge.” tencing criteria in a proper specify manner Spaziano, 462-63, 468 at S.Ct. degree which first murder convictions war 3163. rant the maximum statutory punishment of Supreme The Court empha- McMillan death. they sized that defer should to the State’s “chosen course in the area of defining 3. requires Arizona aggravating factors crimes and prescribing penalties” unless “it proved be beyond a reasonable doubt. principle offends some justice so rooted in the went traditions and Arizona farther peo- require conscience of our than the ple as to ments of be ranked McMillan. The Supreme as fundamental.” Court McMillan Pennsylvania, v. refused McMillan to hold S.Ct. at that In re Win ship, 2416-17. The analyzing Court found in

Pennsylvania that the L.Ed.2d requires law facts which in- that sentenc prescribed punishment voked a ing proven not factors be beyond were a reasonable elements of the subject McMillan, offense proof doubt. 106 S.Ct. at beyond jury citing York, reasonable doubt a v. Patterson New —but provable preponderance a judge. a 97 53 L.Ed.2d 2418-19. The (1977). statute did not However, discard the Arizona courts pecuni- for as consideration offense ted the prove at prosecutor required have offense 2) he committed ary gain; circum statutory one least cruel, de- heinous especially in an A.R.S. doubt. a reasonable beyond stance Transcript of the Sentenc- manner. praved Richmond, 136 13-703; State § special Hearing, ing November denied, 464 U.S. 57, 67, cert. P.2d Birdsall, pp. 93-97. verdict, Hon. Ben C. L.Ed.2d 986, 104 S.Ct. mitigating no found that As trial insures further requirement This additional sufficiently substantial factors were is met 1976 Cases mandate (Id.), finding of leniency warrant individ single out factors which —that the enough gain” factor would “pecuniary awith proven penalty be for the uals A.R.S. to death. to sentence Adamson consistency. reliability and degree of high Smith, 146 Ariz. 13-703(E). § (elimina- be tried not have Sentencing does factors ab- tion of some jury. ato does sence held that has never Court Supreme trial court to the a remand mandate jury. ato tried sentencing must be capital However, disagree I with resentencing). right Amendment no Sixth “[T]here F(6) is unconsti- holding that majority’s sentence where sentencing, even jury Court The Arizona tutional. McMil findings of fact.” specific turns limit- acceptable constitutionally adopted a fact that “The lan, at 2420. (F)(6), language of ing construction ... does like a trial sentencing is capital applied limiting construction and that respects like trial that it is not mean case. in this properly guar Sixth Amendment’s significant provides Spaziano, of a trial.” antee (F)(6) in State limiting construction purpose at 3161. “[T]he Gretzler, 135 Ariz. by, or not frustrated penalty is of the death 2444, 77 971, 103 S.Ct. denied, 461 U.S. with, which the scheme inconsistent in. U.S. 1327, 463 reh’g L.Ed.2d in cases individual imposition (1983). How 32, L.Ed.2d 1452 77 104 S.Ct. by judge.” is determined construes finds ever, majority Gretzler at 3163. 104 S.Ct. disagree. I broadly. over “cruel” the word not el- are factors Supreme Court Gretzler, Arizona’s Arizona only determi- crime, they are is evi there no “[wjhere ... ements of that stated apply actually suffered whether to decide the victims nants used that dence death, or degree prior mur- pain for first punishment mental physical maximum not inconclu presented violate sentencing factors do evidence The where der. not cruelty was jury that sive, of a tri- held have guarantees we any constitutional 51, 659 Gretzler, 135 Ariz. may constitu- or a shown.” judge al. Either has limiting construction a crime. 10. This for P.2d at a sentence tionally determine See, cases. subsequent adhered to been 36, 21, LaGrand, Ariz. 153 v. e.g., State IV. — denied, U.S. 578, 563, cert. 734 P.2d CRUEL, HEINOUS, (1987); OR 207, 158 98 L.Ed.2d “ESPECIALLY -, 108 S.Ct. 367, 362, 728 Wallace, MANNER” DEPRAVED 151 Ariz. State cert. (1986), petition 232, 237 P.2d ag- that the concludes majority also argues majority 10, 1987). The (June filed, provided A.R.S. gravating circumstance vir “to include operates this limitation (the was committed 13-703(F)(6) murder § it can where degree murders first tually all depraved heinous, cruel especially “in an conscious.” the victim proven that Eighth Amendment manner”), violates But been Maj. op. at 1034. the deci- adequately channel failing to result Arizona. trial discretion. sion maker’s finds eases post-Gretzler A review cir- separate aggravating two here found surrounding the 1) commit- the defendant cumstances: 1056 murder in each case resulting 331, in a death 42, 690 (1984), P.2d denied, cert. 50 sentence, were sufficient establish 1230, 469 1234, 105 S.Ct. suffering opposed victim’s actual to a (1985); 371 Graham, State 135 Ariz. See, mere state of e.g., 209, 212, consciousness. 460, 660 (1983); P.2d 463 State v. LaGrand, 36, 153 Ariz. at 734 P.2d Jeffers, 404, 429, 135 Ariz. 1105, 661 P.2d (1987) (victim at 578 gagged, bound and denied, 1130, cert. 865, once, threatened with death more than had 199, 78 (1983); L.Ed.2d 174 State v. Zara opener throat, letter held to his received goza, 135 Ariz. 22, 659 28, P.2d cert. twenty-four stab wounds of only which five denied, would have immediately death); caused L.Ed.2d 1356 But there nothing Castaneda,

State v. 150 Ariz. startling in regard. If, per Gretzler, (1986) (victim P.2d abused, sexually the victims’ suffering is a necessary ele forced to walk naked and barefoot into the ment of a cruelty finding, then the failure desert, begged life, for his was stabbed to establish consciousness logically pre four chest, times in the writhing died in cludes a finding Yet, of cruelty. it does pain lying while hill); on a red ant State v. not follow that the Arizona Bracy, Ariz. 481 would have cruelty found based on con sciousness without some evidence of actual (victims suffering, and majority can cite no case herded about home gunpoint, bound and in which that espoused court has such a lying bed, gagged heard attackers refer position. expandability, their except for first vic The majority’s argument is more unten- tim, endured “unimaginable terror of hav able light ing their loved ones shot to death within Court’s decision in Adamson’s own appeal. hearing their having and then to wait for Less than four months after Gretzler their come”); own turn to State v. Chaney, decided, the court made very clear that 686 P.2d mere consciousness could not suffice to (1984) (victim attacked in car defendant Rather, establish cruelty. in Adamson, high powered with rifle, by approxi struck 136 Ariz. at 665 P.2d at the court mately pieces of flying glass and met stated that defendant must in- “[t]he also al, arm had almost completely severed, bled tend that the victim suffer or reasonably slowly for approximately minutes, foresee that there is a substantial likeli- begged for help, acknowledged impend hood that the victim will suffer as a conse- death); ing Gillies, quence of the defendant’s acts.” The ma- (1983) (victim re jority claims that the Supreme Arizona peatedly raped, cast from cliff, 40a foot expanded Court the concept of begged cruelty for mercy, before having her skull when added requirement the that crushed the boulders by attackers). thrown prosecution prove the defendant’s intent to In an attempt to show the over broad suffering, cause or the reasonable foresee- application of Gretzler’s cruelty limitation, ability of suffering. that To the contrary, the majority states that nearly “in every because Adamson saddled prosecution the case in which finding cruelty of was with an additional element of proof, reversed, the court only concluded that the narrowed the construction cruelty. of prosecution proven had not the victim was Maj. op conscious.” at 1033-34. In And contrary of each to the majority’s discus- decisions, these sion, the Supreme Arizona the Adamson prerequisite Court has been concluded that the victims’ consistently applied post-Adamson consciousness in all established, had not been therefore, and In cases, nei cases. some as the majority has ther Wallace, See cruelty. had acknowledged, 151 Ariz. at the Supreme Arizona Court 367, 237; P.2d at Poland, State v. 728 has 144 cited Adamson for the intent/fore- 388, 405, Ariz. 183, (1985), 698 P.2d 200 seeability prerequisite proceeded and to an- aff'd 147, 106 476 1749, S.Ct. 90 alyze the facts accordingly. See v. State (1986); State v. Villafuerte, 142 323, Ariz. (Bernard) Smith, 491, 146 504, Ariz. 707

1057 controlling. Based on should not be at (1985); Bracy, 145 Ariz. 289, 302 Prof P.2d 12, Florida, 96 n. McCall, 139 v. 428 U.S. v. State 481; 537, P.2d 703 at fitt 12, 920, (1983), n. 934 161, S.Ct. 147, 677 P.2d Ariz. 2670, the 1220, look to denied, 467 U.S. 104 S.Ct. we should cert. McDaniel, v. cases, merely court’s lan State (1984); the not 375 L.Ed.2d 81 (1983). 70, 200, limiting 82 con 188, 665 P.2d guage, to determine whether Ariz. 136 cited not cases, court has Neither other has been abandoned. In struction However, of these in each post-Adamson decision any other Adamson. Rossi nor found, the facts cruelty was in Court Supreme which Arizona cases indicates that prerequi satisfy the Adamson the Adamson adequately prerequisite. abandoned Correll, See, v. e.g., State site. to Adamson Thus, and Gretzler taking (victims 721, (1986) 480, 733 468, 715 P.2d has set Court gether, in ground bound, laid transported, cruelty re that construction forth a Carriger, seriatum); desert, shot suffered showing that the quires a victim 991, 1009 142, 160, 692 P.2d Ariz. 143 death, and pain prior to physical or mental 1111, 105 471 (1984), cert. rea or could intended that the defendant (victim (1985) 864 2347, L.Ed.2d S.Ct. so the victim would sonably foresee bound, life, was beaten was for his pleaded This construction suffer. “channels] blows); off the behind, to ward unable from objec and by clear sentencer’s discretion 63, 75, 673 Lambright, Ariz. ‘specific and provide tive standards denied, 469 U.S. (1983), 1, rational guidance;’ and that ‘make detailed (1984) 83 L.Ed.2d 105 S.Ct. imposing a process ly reviewable the sexually as abducted, transported, (victim ” Georgia, Godfrey v. sentence death.’ chest, choked, in ab twice, stabbed saulted 100 S.Ct. 446 U.S. being neck, knife twisted domen (1980) Woodson quoting L.Ed.2d her). found I have inside turned while Carolina, 96 S.Ct. 428 U.S. North cruelty post-Adamson decision which no (1976); L.Ed.2d Prof of evidence absence found was 2967; at fitt, example, foreseeability. For intent Georgia, Gregg v. Chaney, Adamson stated court cited — “cruelty foresee must be requirement Cartwright, Maynard U.S, court then defendant.” able [the] 1853, 100 -, L.Ed.2d paragraph to a discussion entire devoted Tenth Cir affirmed the foreseeability: supporting the facts banc) finding (en cuit the AR-15 was of what Chaney heinous, knew atro “especially circumstance power its use and explained he capable; capital sen cious, of Oklahoma’s or cruel” enough Chaney stood close to Deanna. Amend Eighth tencing statute violated that the see victim to the victim to The Court at 1857. ment. again. Chaney then fired pain; great sufficiently guide did not found the words victim left he knew Chaney When had courts the Oklahoma jury and that Chaney the vic- knew not dead con by a limited infirmity cured the cru- suffering. The murder was tim was Nor, the Id. could terms. struction el. aggra look analysis at Circuit’s Tenth Rossi, 146 Ariz. v. disjunctively finding Id. State vating In circumstance — not (1985), did court “heinous” precise P.2d more than “cruel” to be Adamson, similarly a ref- Maynard, included “atrocious,” Cartwright but v. cite or Cir.1987) (en use of “ammuni- (10th to the defendant’s erence 1489-90 822 F.2d greater designed to inflict Oklahoma, that was of Criminal banc). tion In the Court ordinary damage than bullets.” term it was specify tissue which did not Appeals it found relying on when not opinions do That Rossi other Rather, after present. circumstance to to Adamson specific or a a citation include sur- reviewing all of the foreseeability to intent or as conclusion murder, rounding 1130-31; Zaragoza, 69-70, court would con at Ariz. clude that the murder either was “at the P.2d at 28-29. circumstance,” see, ‘core’of the e.g., Nuck significant There is a difference between State, (Okl.Cr ols v. 690 P.2d 472-73 way employs disjunctive its .1984), See, not e.g., or that it was so. way statute and the Oklahoma employ- (Okl.Cr. State, v. 651 P.2d Odum ing disjunctive its statute. The Arizona 1982). Thus, alluded, as the Tenth Circuit Supreme Court severs the terms used in reviewing a court such Oklahoma decisions (F)(6) analyzes each one separately. only speculate findings could as what Wallace, See 151 Ariz. at 728 P.2d at “heinous, atrocious, or underlied the cruel” 237; Gretzler, 135 Ariz. at 659 P.2d at though Even determination. Id. 10. All of the court’s clearly decisions another, unchallenged aggravating found (F)(6) reveal whether determination sufficient to the sen circumstance sustain “cruelty” based on or “heinousness tence, procedure Oklahoma had no to save depravity”, Moreover, or both. for ag the death when one of several “cruelty”, finding case, in this the es- gravating circumstances relied on was in sential factors for finding are de- well

valid. Id. 108 S.Ct. at 1860. The Court Therefore, fined. the infirmities which de- simply vacated the death sentence and au feated the Oklahoma statute in Maynard, tomatically imposed life-imprisonment a grounds alone, on of cruelty are not sentence. present here. if limiting Even construction of hei Adamson, In Supreme the Arizona Court depravity nousness and runs afoul of the concluded that “the murder was accom- Eighth Court’s Amendment au plished in especially cruel manner and thority such as Maynard Cartwright, that the court properly ag- trial found the — U.S. -, 100 L.Ed.2d gravating circumstances under subsection par this case is unaffected. (F)(6) of the 266-67, statute.” 135 Ariz. at ticular, because the Arizona Supreme Court 665 P.2d at 988-89. The court did cruel, found that Adamson’s crime was but discuss depravity heinousness or and reit- did finding not make a as to heinousness erated the findings trial court’s as follows: depravity, any alleged constitutional clearly The victim suffered in the instant deficiency surrounding those latter two case. who Witnesses were build- inside appeal. terms is irrelevant to this ings hundreds of explosion feet from the they testified that heard Bolles scream- The Arizona reads ing help. particles Bolles had from disjunctive language (F)(6) (“heinous, imbedded in body. leg bomb his One cruel, depraved”) permitting the es upper was shattered from the hip tablishment of circum ankle appearance and had the of ham- upon finding stance of one or more of the burger. leg The other and one arm were statutory Wallace, terms. See 151 Ariz. at severely also mutilated. The force 366-67, 236-37; Gretzler, 728 P.2d at explosion piece sent a of flesh the size of Ariz. 659 P.2d at 10. The court has parking softball across the lot. frequently (F)(6) present found to be in a means to kill used Bolles made it reason- only finding case cruelty, see, based ably foreseeable to Adamson if e.g., Harding, State Bolles did not die instantaneously there (1984); (Rob P.2d was a substantial likelihood that he ert) Smith, 79, 85-86, great would inju- suffer deal from his (1983); McDaniel, 23-24 136 Ariz. at ries. 82; Gillies, 135 Ariz. at 135 Ariz. at 512-513, only P.2d at on a finding of heinousness see, and depravity, Adamson, 665 P.2d at 988. excerpt This e.g., Fisher, 227, 252, v. 141 State 686 plainly follows the up channels set in 750, (1984); P.2d 775 Richmond, (victim’s suffering) Gretzler and earlier in 136 Ariz. 57, (1983); 64 (intent/foresee- opinion the same Adamson Jeffers, 429-30, 135 Ariz. at 661 ability). P.2d at No error in exists the court’s fac-

1059 to the doubt beyond reasonable suffering proved of existence the findings on tual Arkansas, 333 U.S. Cole v. See judge. presump- considering the foreseeability, or L.Ed. 92 201-202, 68 S.Ct. findings such to which correctness tion of Court, as Supreme (1948). Arizona 2254(d). The There- 644 28 U.S.C. § are entitled. “an law, undertook Arizona case required in this applied not (F)(6) fore, was estab- facts that Arizona independent review The manner. unconstitutional an of the con- or absence presence limited lish the properly Court Supreme v. limiting con- circumstances.” (F)(6) and that and of struction Adamson 560 to applied Richmond, 114 Ariz. properly was struction Pro- of Criminal Rule (1976); 17 A.R.S. crime. 51 his and (for- 13-4031 31.2(b) A.R.S. § cedure Supreme the Arizona calls majority The au- 13-1711) for (providing merly A.R.S. § special Birdsall’s Judge of review Court’s to the sentence death of a appeal tomatic rationaliza appellate hoc “[p]ost verdict court). supreme state majority The 1036. op. at Maj. tions.” requires death of gravity the The U.S. 472 Mississippi, v. cites Caldwell the record examine painstakingly that we (1984) and 231 L.Ed.2d 86 errone- been it has whether to determine 14, 99 S.Ct. Georgia, v. Presnell imposed. ously support (1978) to 207 L.Ed.2d 58 im is no However, there 51. here P.2d at Richmond, at contention. from responsibility has been required, of shifting not while process, This permissible appellate authority as Supreme Court sentencing the U.S. encouraged by the In Cald arbitrary in Caldwell. was court, against the random there as a “check be that jury the Gregg v. told penalty,” the well, prosecutor of death imposition the pen 2940; the death apply at U.S. decision at Georgia, their cause the automatically 37, 45, 104 S.Ct. Harris, U.S. reviewed alty Pulley was not was (holding ap decision court, (1984) their supreme state at S.Ct. is encour at review U.S. proportionality pellate Id. final. that Constitution) held Court Supreme by the required The not aged but 2637-38. ju of element sen the the “reliability use cannot safeguards the prosecutor the on arbitrary and influence prevent as an review process” tencing dicial at sentencing. Id. sentencing. role their capricious minimize California Here, Judge Birdsall 538, 107 at 2646. 341, 105S.Ct. Brown, 479 U.S. sentence final fact and findings of Arizona made L.Ed.2d misconduct sup the evidence prosecutorial found element properly no with Court give sought F(6) aggravating which finding influence improper ported authority upon [his] a “view sentencing “cruelty” based circumstance sentencing procedure indepen upon capital findings judge’s in the role trial with incompatible fundamentally evidence. review dent ‘need heightened Amendment’s Eighth death the determination reliability in V. specific ain punishment appropriate ” (quot DEATH at OF 340, 105 S.Ct. PRESUMPTION Id. at case.’ Carolina, 428 U.S. v. North ing Woodson reticence majority’s I understand 2991). at 305, 96 S.Ct. can never “It penalty. death imposing the our duties painful most less than inapposite in Presnell issue However, cases.... capital pass au- fact that concerned when every case a time comes there “capi- underlying found had not thority Eddings the bullet’.” must ‘bite court pen- triggered which offense” tal 127, 102 Oklahoma, 455 U.S. 15, 99 S.Ct. alty. J., (Burger, L.Ed.2d Further, say what “to job here is our dissenting). It circum- for an reaching Madison, U.S. Marbury v. is.” the law presented been had not stance (1 Cranch) original). L.Ed. 60 Subsection G of the pro- statute legislature The Arizona has promulgated just vides that: sentencing its legisla- statute through its Mitigating circumstances shall be any process tive must apply and we it as the proffered by the factors defendant law unless it is unconstitutional. The ma- the state are which relevant determin- jority holds that Arizona ing impose whether to a sentence less (Arizona statute Revised Statutes [A.R.S.] death, than including aspect any of the 13-703) (see maj. op. at n. 2 for full § character, defendant’s propensities or statute) unconstitutional, text of claiming record any of the circumstances of precludes presentation that it mitigat- of all including offense but not limited to ing evidence presumption and creates a of the following_ disagree. I death. The sentencing scheme 13-703(G) A.R.S. added). (emphasis § here is constitutional on its face and as Thus, the statute on its complies face with applied. First, Arizona allows considera- the Constitution. of tion all mitigating evidence and the trial Second, court here allowed such the trial consideration. court this case con- Second, constitutionally sidered all mitigating allows the relevant factors: trial weight mitigat- ascribe to the The Court following makes the findings ing Third, evidence. the word “shall” in as ... any existence of the statute not does create a presumption mitigating circumstances included in of or a mandatory sentencing Subsection G thereof. scheme. In regard this the Court has considered only not specific mitigating five 1. Arizona allows consideration all of circumstances enumerated in the stat- mitigating evidence. ute, any but also proffered by factors The Arizona provides statute pre- or the state which are defendant sentation of mitigating all evidence with in determining relevant whether to im- production the burden of on the defendant. pose death, a sentence of including all “Any information relevant any mitigat- aspects of the character, defendant’s pro- ing circumstances included in subsection G pensities, record, of all the circum- this may presented of section be regardless stances of the offense so far as these its admissibility govern- under the rules have been made known to the Court. ing admission of evidence at criminal tri- In making findings these the Court has als.... of establishing burden disclosed to defendant’s counsel all mate- any existence of in- circumstances rial contained in presentence report cluded subsection G this section is on supplement thereto. 13-703(C). defendant.” A.R.S. § The Court has further considered any First, the provides statute presen- for the information relevant any “any tation information any relevant to regardless circumstances its admissi- mitigating circumstances ...” This satis- bility under rules governing admis- fies the Ohio, mandate Lockett v. sion in a evidence criminal trial.... U.S. Mitigating circumstances, Subsection G. (1978)and its progeny: Eighth and “[T]he The Court finds that mitigat- none of the Fourteenth require Amendments that the ing circumstances specifically set forth in sentencer precluded ... from consid- Subsection G exist. ering, as mitigating factor, any aspect The Court further finds that there are no of a defendant’s character or record and other mitigating circumstances suffi- any of the the offense ciently substantial for leniency. call that the proffers defendant as a basis for a sentence less than death.” Eddings, regard the Court has considered citing S.Ct. at Lockett the fact defendant has cooperat- Ohio, ed with United States Government 2964, 57 (emphasis in and with the State of Arizona in criminal

1061 constitutionally allows 2. Arizona investigations, that criminal in and cases to the weight to investiga- ascribe trial and of the cases least some at activity, evidence. mitigating criminal serious involve tions pend- still are matters these some of finds majority unconstitutional The th^ he states defendant and that ing requires the defendant fact Arizona cooperation. this continue willing to is mitigating factors the existence prove considered further has Court The be- evidence preponderance a given if the defendant argument from sentencer “precludes the it cause it cooperation his through sentence life mitigating evidence.” all relevant weighing who to convict others possible may be The disagree. I Again Maj. op. at 1039. of the the death responsible for also are rationally dis- require states Cases 1976 victim. individuals for those tinguish between mitiga- in also considered Court has The from appropriate penalty is the death whom this case proceedings legal tion doing the in so it is not and whom for those of this the time inception to its since cir- the individual consider must sentencer sentencing. defendant, his back- cumstance Hearing, No Sentencing Transcript of 428 U.S. at Proffitt, and crime. ground Verdict, Hon. Ben 1980, Special 14, vember 2966-67; Gregg, 428 252-53, at 96 S.Ct. (em 94-98 pages Birdsall, excerpts C. Part 193-95, at 2934-35. 96 S.Ct. at ap Thus, the statute added). phasis al- includes consideration individual of this with in accordance case in this plied during the present, defendant to lowing the interpreted as The statute Constitution. miti- hearing, circumstances all for full provides also courts Arizona by the penalty, the death imposition of gating mitigating circum any consideration 604, 586, 98 S.Ct. Ohio, 438 U.S. v. Lockett 388, Poland, Ariz. 144 stances, v. re- 973 L.Ed.2d 57 476 U.S. 183, (1985)aff'd, 201 406, 698 miti- to this listen the sentencer quires (1986) 123 L.Ed.2d 90 147, 106 S.Ct. Oklahoma, v. Eddings gating evidence. proffered all (court considered 104, 115, n. 455 U.S. in the not listed including those factors (1982). 10, 71 L.Ed.2d n. constitu statute), it is therefore Arizona Texas, 272- 428 U.S. v. Jurek tional. requiring the sentencer this rule But 2956-58, 76, 96 S.Ct. mitigating evi- all listen to in and to allow statutory found (1976) (Supreme sentencer that the dence, require does not by the construed as constitutional scheme evidence weight to the give particular Risley, 842 courts); McKenzie Texas evi- irrelevant consider sentencer that the (Montana Cir.1988) (9th 1525, 1542 F.2d the sen- allow Eddings Lockett dence. constitutional). applied as statute to “deter- reviewing court and the tencer restrict or not here did trial court miti- given relevant to be weight mine did the as mitigating evidence any exclude give may not they But evidence. gating at Eddings, court trial from such evidence excluding weight by no simply trial court did the Nor at 876. S.Ct. at Eddings, consideration.” their cir- once the pronounce “Nothing at 877. mandato- in the as found were cumstances authority of traditional limits the opinion Shuman, Sumner ry schemes. irrelevant, evidence exclude, as court L.Ed.2d character, prior defendant’s bearing on mandating law Nevada down (court struck of his of- record, or the kill while who inmates death sentence n. Lockett, 438 U.S. fense.” sentence). stat- life serving a the Court Eddings 12. In n. and the its face preclusion no ute said: court and trial remanded court here by the trial applied statute years youth of Eddings awas Thus mitigating facts. in all allowed of a diffi- Evidence murder. time of Ed- the mandate court followed trial dis- emotional history family cult Lockett. dings typically turbance is introduced by prove de- a defendant guilty of degree first mitigation beyond [citations murder fendants omitted]. reasonable doubt. State cases, In some properly such evidence Richmond, given may weight little But when Then the state prove must years defendant was 16 old at the one of the statutory aggravating circum time of the there offense can nobe doubt beyond stances a reasonable doubt. State that evidence of turbulent family a histo- Jordan, 283, 614 P.2d 825 ry, beatings father, by a harsh and of (1980), denied, 986, cert. 449 U.S. 101 S.Ct. severe particu- emotional disturbance is 408, 66 (1980). 251 L.Ed.2d This meets the larly relevant. objective first Cases, is, the 1976 that 115, distinguish Eddings, 455 U.S. at between at 877 those individuals for (emphasis added). whom the Supreme The death penalty Court reit- is appropriate remand, erated: “On from the state those courts for whom it must is not. 428 Gregg, all consider relevant mitigating U.S. at evidence 96 S.Ct. at 2934-35. If the weight against state evidence of the cannot show aggravating circum aggravating circumstances. stances beyond do not a doubt, We reasonable the tri weigh the 117, evidence them.” at al impose court must a life sentence 102 (emphasis S.Ct. at added). 878 impose cannot a death sentence. A.R.S. 13-703(E). However, if § state does Murray, 28, Turner v. 476 U.S. 106 show at least one aggravating 1683, S.Ct. circum cited beyond stance doubt, a reasonable majority, Supreme the bur analyzed Court den upon is then Virginia defendant to death show statute noting mitigating that circumstances. gives the statute A.R.S. greater dis 13-703(E); Richmond, 316, § cretion Ariz. systems than other at such as the 666 P.2d at 61. system upheld Texas Jurek, 428 U.S. 262, 2950, S.Ct. (1976). The Arizona statute provides that “the Court, The citing Eddings, that stated burden of establishing the existence of the sentencer must be “free to weigh the rele circumstances included in subsection G vant mitigating factors” and facts) (mitigating of this section is on the end “it is the jury that must make the defendant.” A.R.S. 13-703(C). And, § difficult, judgment.” individualized Id. 476 that the judge impose trial shall the death 34, U.S. at 106 S.Ct. at 1687. majority The penalty if “there are mitigating no circum- contends that the Arizona statute does not stances sufficiently substantial to call for allow the sentencer here to “free leniency.” 13-703(E). A.R.S. § This has

weigh the relevant mitigating factors.” Maj. been interpreted by the Arizona Supreme op. 1040, citing Turner, 476 34, U.S. at Court to mean: Only concluding after that a defendant majority’s The objection concerns the proved has preponderance with which method Arizona has chosen to evidence certain mitigating circumstanc- weigh the mitigating evidence. Their con- es must a trial judge determine whether tention is that this precludes method proven mitigating circumstances war- required by consideration the Constitution. leniency. rant If judge the trial con- has Court been unwilling to cludes proven mitigating circum- say any right that there “is way for a state stances warrant leniency, then he must up to set capital its sentencing scheme,” impose If, a life however, sentence. Spaziano, 468 U.S. at 104 S.Ct. trial proven concludes that the mit- long so as it is constitutional. The igating circumstances do warrant le- manner in which Arizona has up set its niency ... then he impose must a death sentencing scheme meets all the constitu- sentence. requirements tional of the 1976 Cases. (II), State v. Rossi Ariz. 246, 741 Before subject someone the Arizona P.2d 1224-25 n. 1 See also death penalty, the state must charge and Poland, Ariz. rejected Watson, we where State 476 U.S. (1985), aff'd, 183, 201 contention. (1986): L.Ed.2d proving burden have Greenawalt,

Defendants preponderance by a factors mitigating sentencing court the evidence.... cogni- may take appeal and this of af added). “some form This (emphasis refute tending to of evidence zance inter has since been evidence” firmative circumstance. mitigating Court, in by the preted review independent making the bur their the defendant The fact penalty, whether factors mitigating imposition of the for the production den of Eddings, established defendant has unconstitutional. is not of the (“that defend preponderance a at 874 110, circumstance S.Ct. at 102 has to Supreme Court this rule evidence, applied since The and has proffers”). ant to what McMurtrey, of 143 the choice v. expressed court. State the trial of choice sentencing, 1099, or the 1100 during 72, 71, 691 P.2d present Ariz. all, in the be nothing at should 911, 107 S.Ct. presenting denied, U.S. 480 cert. the strat part of as (II), of the defendant Rossi (1984); hands v. State 530 483 Kemp, U.S. Burger v. the trial. 1224- egy 246-47, of 154 Ariz. L.Ed.2d 97 process 107 describes (1987). The Court — U.S. -, denied, reh’g as: (defendant of 32, 97 L.Ed.2d as fact first court acts trial [T]he mitigation/aggra during no evidence fered whether consider It must finder. Kincheloe, v. Campbell hearing); vation any of the proven has state Cir.1987), (9th 1453, 1463 F.2d 13-703(F) in ] enumerated [A.R.S. factors — 380, 102 -, denied, must It ... doubt beyond a reasonable case, Adamson (1988). In this the defendant whether determine also enforce law cooperation with proffered by a circumstances mitigating has shown coop authorities, of his offer further ment [citing evidence preponderance subject and dura length, eration, P.2d at Ariz. at McMurtrey, the case of legal proceedings tion are de- Mitigating 1101]. Transcript of the Sen beginning. since its ... relevant factors “any fined Proceeding at 98. tencing impose sen- a determining whether fact to the majority objects 13- A.R.S. death.” less than tence evidence weight is ascribed some made has court the trial 703(G). After Arizo- “mitigating." it is considered before fact, engages it then findings of these weight in this ascribing a of method na’s it determines in which balancing test weighing than the no different manner is are suffi- mitigating factors whether Eddings: described leniency. to call ciently substantial mitigat- proof to establish The burden 13-703(C)]. [A.R.S. by the lack not met ing circumstances Leslie, contends, but appellant proof, as 719, 730 of some production by the of af- form find- makes trial court an Arizona When it could from which evidence firmative considering all of it is ings of fact partic- defendant’s that the inferred be If a mitigating circumstances. defendant’s he minor or that relatively ipation was it is irrelevant then mitigating, not fact is foreseen reasonably have could not Lockett, disregarded. may be person, another [cita- of death risk If a n. 12. n. to con- Appellant seems tions omitted] weight at has no mitigating factor alb be re- prosecution should tend that circum- against weighing it beyond reasonable prove quired Cir- Eleventh futile. would be mitigating stances cir- nonexistence doubt the point: extensively on this spoken cuit decision to our We adhere cumstances. Lockett thát instructs required tion by the Constitution. It does body impact be free to consider the preclude not the sentencer from consider- background the defendant’s in making ing or weighing mitigation evidence as the say, however, its decision. To as [de- majority suggests. For example, in State maintains, that imposes Lockett fendant] Jordan, 614 P.2d at duty on the sentencer regard such the fact that the defendant was somewhat evidence as mitigating quite another intoxicated did not automatically make that matter.... requirement There is no fact mitigating circumstance, although it agree that the court with the defendant’s fully considered the trial court. view that it only is mitigating, that the Whether the intoxication was a proffer given be consideration. depended circumstance on whether “[h]is Raulerson v. Wainwright, 732 F.2d capacity appreciate wrongfulness (11th Cir.1984) (emphasis original); his conduct or to conform his conduct to See also Johnson Wainwright, 806 F.2d the requirements of law significantly (11th reh’g F.2d 208 impaired, but not impaired so as to consti- Cir.1986) (although the may sentencer tute a prosecution.” defense to Id. The precluded from considering mitigating Court said: factors, “it is of no constitutional moment” Willifred’s testimony falls short of prov- the sentencing judge evaluated the ing the necessary degree impairment factor as having little or mitigating no val from intoxication. Not only is her testi- ue); Hall v. Wainwright, F.2d mony inexact as to defendant’s of level (11th Cir.1984), intoxication crime, time of the it is (1985) L.Ed.2d (sen- any also devoid description of of how may tencer determine weight to be defendant’s intoxication affected his con- given evidence of mitigating relevant cir duct, other than that he was “mum- cumstances). bling.” Defendant did not mention the majority cites Cool v. States, United influence of drugs or alcohol in his con- 357, 34 fession, nor did he testify at his sentenc- for the proposition that ing hearing. agree We with the trial “there is an ‘essential difference’ between court that defendant has prove failed to guiding the care with which the sentencer that his intoxication mitigating was a determines how much weight to accord evi circumstance.” dence, and requiring predicate aas to consideration of evidence, Id. 126 Ariz. must be at 832. In State v. beyond found true doubt, Gillis, reasonable (1984), P.2d 655 by other evidentiary some Maj. standard.” defendant claimed five mitigating circum- op. 1039. But the issue in Cool concerned age, stances: changed attitudes, intoxi- accomplice requiring instruction the jury cation, felony murder instructions and life evidence, exculpatory to find proffered by sentence for his Id., co-defendant. accomplice, defendant about an true beyond Ariz. at 691 P.2d at 662. The trial Cool, a reasonable doubt. 409 U.S. at 102- court had considered all yet circumstances 103, 93 S.Ct. at 356. This instruction was they found that were insufficient to call for improper found because it allowed the jury leniency. The Court dis- despite convict its failure to find guilt cussed each factor their independent re- beyond a reasonable doubt. Id. at 93 view of the evidence. Even though defend- S.Ct. at 356. But this is pronounce not a ant years old, 20was the court found the ment on the weight kind evidence must impact “youth” minimized have at sentencing, or the evidentiary stan extent and duration of (the the murder dard to be applied to mitigating circum torture the victim from beginning until stances a death sentence statute. eight hours). death was Next, the defend- process of determining if ant defendant claimed intoxication. The Court found has met this preponderance standard is ex- that because the victim was held captive actly the kind of individualized considera- hours, the defendant was not intoxi- length appellant proved by preponderance throughout that of time so as cated appreciating the him from that his cocaine prevent evidence addiction The Court wrongfulness of his behavior. significantly impaired capacity to con- changed a miti- attitude found defendant’s requirements form his conduct to the gating defendant became factor because very persuasive the law. We find Dr. remorseful, the felo- religious and but that testimony Nash’s unrefuted on chemical mitigating was not a ny murder instruction dependency general and how addiction there was no doubt here factor because life-controlling fosters an insatiable and intent to kill. The Court defendant’s about craving drugs for additional that over- the co-defendant also found that the fact ability to whelms the user’s control his not a plea bargained for a life sentence was physical behavior. mitigating factor. Id. (II), v. Rossi pre- These cases show that the Arizona offered two P.2d 1223 the defendant ponderance standard allows the trial court mitigating circumstances and the trial to listen and consider all factors offered as prove by did not court ruled that defendant defendant, mitigation by weigh and 1) that preponderance of the evidence: mitigating balance rehabilitated; 2) defendant could be against circumstances. capacity appreciate that defendant’s procedure “proof This characterized as a wrongfulness of his conduct to conform stage” objected majority, requirements of the law his conduct to preclude does not evidence but sifts due cocaine significantly impaired evidence, distinguishing those between Id., 154 Ariz. at 741 P.2d at abuse. facts are from those which had found that in 1226. The trial court Logically which are not. those factors expert witness- spite testimony of three mitigating by preponder- found not to be defendant could be reha- es that indicated ance, weight no at all as miti- would have proved had not that defendant bilitated gating weighing process in the factors preponderance. The trial court con- by a help they so would defendant —but planned the sidered that defendant rob- considered the sentencer. have been bery, unusually (Hydra- destructive used mitigating aggravating both Where shok) bullets, bragged to his friends about case, given in circumstances are found incident, gave away spent bullets as the Arizona judge, the trial and then Su neighbor souvenirs and shot the victim’s review, preme must determine Court Id., she a witness. 154 Ariz. because was mitigating circumstances are whether the 248-49, The Arizo- 741 P.2d at 1226-27. “sufficiently to call for lenien substantial arrived at a different na Court 13-703(E). If the cy.” A.R.S. Court mitigat- § conclusion and found these factors aggravating finds one or more circum ing. They independent held in their review 13-703(F) prov in stance as listed A.R.S. § trial courts reasons “have no bear- that the then it “shall beyond en a reasonable doubt ing” on so could not be used rehabilitation Id., impose a sentence of death” unless there evidence. to refute defendant’s mitigating circumstances that are “suf 1227. The Arizona are Ariz. at 741 P.2d at leniency.” for ficiently to call did not find defendant substantial 13-703(E). aggra The number of proved by preponderance that his cocaine A.R.S. § is not significantly impaired capacity vating mitigating his addiction wrongfulness gravity. of his con- “One appreciate dispositive, to but rather their Id., circumstance, example, may Ariz. at 741 P.2d at for duct. outweigh ‘sufficiently substantial’ aggravating circumstances.” State v. two to our conclusion are ‘cover Critical Gretzler, Ariz. 659 P.2d up’ appellant acts that committed on appellant’s day ability of the crimes and (1983). exam Some of the them-

to recall vivid details crimes believe, however, mitigating circumstances ples where the selves. We do outweigh young burn to death her three were found children. Gretzler, State v. factors are listed 131 Ariz. at 639 P.2d at 1036. 55, 659 P.2d at 14: Ariz. at Bishop, supra, v. State defendant’s lack Brookover, example in su prior criminal record and For below aver- pra, impaired capacity ap age intelligence defendant's sufficiently were not conduct, wrongfulness preciate the of his outweigh substantial to the heinous and (a caused a medical condition brain depraved killing which defendant obvi- gating time of each There, were ant arising compelling mitigating demonstrated cia, treme conviction of a lesion of a anti-social 41-42, combined 132 Ariz. outweighed by youth of the defendant’s factors from a only 601 P.2d at 1325-26. The ex behavior), type frequently producing weight crime.... recently in sixteen an offender can also be a previous outweighs drug 645 P.2d 239 the fact that defend of a number of miti outweighed offense. years circumstance, prior State v. Valen violent incident In some convictions old at the aggrava cases prior State at 14. venir of the occasion. 126 Ariz. at sons with total and with undoubted 616 P.2d at 897. as ficiently and emotional manner, senseless, depraved killing dant’s ously relished. 127 Ariz. 622 P.2d child, Gretzler, age ^[478] substantial (20 lack of adult State problems years at 481-82 disregard 135 Ariz. at relish, keeping Clark, old), were found insuf- criminal ^[531] (1980). poor of human outweigh supra, of four home 534-35, record, In like defen- a sou- per- life, life Watson, example, tion. For The trial court in the instant case fol- 946-47 lowed the letter of the It has law. been (1981), the facts that the murder oc previously shown that he considered all the unexpected curred as the result (See V(l), su- mitigating factors. Section robbery shootout with the victim pra). The trial court listened to and as- first, fired which the victim defend signed weight to the evidence. He conclud- twenty years ant one old at the time ed that Adamson had not the miti- shown crime, and that there was evidence gating “sufficiently evidence to be substan- great genu defendant had done a deal of leniency,” tial to call for all that he was crime, searching ine soul after the had required to do under Arizona law. Tran- prisoner going a model while been script Sentencing Hearing at 98. through appellate process, had set The Court went farther than this and found himself, goals attempted new that the circumstances existed prison, his education in out further beyond a and that reasonable doubt weighed prior for robbery. conviction mitigating circumstances did not exist be- Gretzler also discusses other cases where yond reaching a reasonable doubt further aggravating outweigh circumstances required by than Arizona law to consider mitigating: mitigating the existence of circumstances. Knapp, supra, v. For instance in procedure complies This with the 1976 prior defendant’s lack of criminal record Lockett. and with The trial court Cases outweigh cruelty did not the extreme sentencing gave under the Arizona scheme burning his two children to death. 114 careful, mitigating presented all evidence Ariz. at 562 P.2d at resentence constitutional consideration. 503, 504-05, aff’d 125 Ortiz, Similarly in 91-92 sentencing 3. The Arizona statute does supra, defendant’s lack prior criminal presumption not create a death or record did not excuse his heinous and mandatory sentencing a scheme. murder, depraved involving grave risk aggra- once the others, provides The statute of death to he stabbed a which vating proved beyond factors have been woman to death and made sense- then less, once the defendant to stab and doubt and attempts indiscriminate reasonable facts, ing presented mitigating “beyond the trial circumstances did not exist Transcript of reasonable doubt.” the Sen- tencing Proceeding at 98. if the impose a sentence of death shall aggravat- more of the court finds one or majority The reasons that because de- ing circumstances enumerated subsec- persuasion fendant has the burden tion F of this section and that there are presentation mitigating evidence and be- sufficiently mitigating no circumstances cause the statute contains the word leniency. to call for substantial “shall”, sentencing scheme is a 13-703(E) added). (emphasis The A.R.S. § one, mandatory carrying presump- with it a in this case the statute. trial court followed tion of I already death. have discussed found circum court two why persuasion the defendant’s burden of stances, the defendant committed the (see V(2) above), unconstitutional pecuniary gain consideration for offense as I shall show below that the Arizona scheme committed the offense in an and that he “presumption carries a of life” and in no especially Transcript cruel manner. of the way resembles an unconstitutional manda- Sentencing Proceeding, The Ari at 93-97. tory sentencing scheme. Supreme zona Court found that the murder Supreme pronounce After the Court’s accomplished especially in an cruel ment in Georgia, Furman v. properly manner and that the trial court (1972), where under found the circumstance pen Court declared the death (F)(6) of the statute. Adamson subsection alty “in these cases constitute cruel and State, Ariz. at 665 P.2d at v. punishment,” legislatures unusual state 988-89. The trial court found there were changed sentencing their laws. Id. at sufficiently no circumstances 92 S.Ct. at 2727. In leniency. Transcript substantial to call for Court reviewed five death cases Sentencing Proceeding at 97. Al sentencing under these new schemes. though majority distinguish tries to upholding “guided-dis the three cases Kincheloe, (9th Campbell v. 829 F.2d 1453 statutes, opinions emphasized — cretion” Cir.1987), -, U.S. permitted that those schemes the sentenc L.Ed.2d S.Ct. there ing authority mitigat to consider relevant similarity to this case. Defendant there ing pertaining to the offense argued a mandato statute created range the individual and a of factors about ry presumption penal in favor of the death Gregg Georgia, defendant. ty placed on the defendant burden 2909, 2936, 49 L.Ed.2d prove mitigating cir there are sufficient (1976); Florida, 428 leniency. cumstances to merit Id. at 1465. Proffitt 242, 251-52, 96 law, Washington after the finds Under (1976); Texas, 428 Jurek statutory aggravating circumstance be 270-71, 96 at 2955-56. The Court doubt, yond they a reasonable then are mandatory declared two following required to deliberate on the opinions schemes unconstitutional. question: “Having in mind the crime of fatally they stressed were flawed their guilty, which the defendant has been found permit presentation mitigating failure beyond you are convinced a reasonable circumstances for the consideration of the mitigat that there are not sufficient doubt sentencing authority. Woodson v. North ing leniency?” to merit 280, Carolina, 428 U.S. 98 S.Ct. indicates, the at 1465-66. As instruction 3006; (Stanislaus) Roberts v. Louisi proof the state’s burden of carries with it 3001, ana, 325, 333-34, 96 428 U.S. S.Ct. presumption leniency, presumption Thus, 3006, the only by state can overcome which the capital constitutional mandate is that showing beyond a reasonable doubt that constitutionally required cases “it is mitigating there are not sufficient circum leniency. sentencing authority the have information judge stances to merit The trial mitigat- case sufficient to it to consider the char- the instant found that the enable life,” is, prosecutor prove acter and individual circumstances a de must imposition prior beyond fendant of a death sen a reasonable doubt that one of the 2720; Sumner, tence.” 107 S.Ct. at statutory aggravating factors which make Gregg, at 189 n. S.Ct. death-eligible the defendant If exist. long sentencing as the 38. So prosecution burden, carries that then the n. provisions it is consti scheme makes these may present mitigating defendant evidence tutional. on his behalf to tilt the balance back sentencing authority, favor. The makes appears as it in the word “shall” balancing the final determination. This Texas and Montana schemes way scheme in no typical resembles the Texas, In declared constitutional. been mandatory sentencing procedure, which sentencing procedure requires capital only looks to the circumstanc- jury questions three at the answer Sumner, es. 107 S.Ct. at 2720. Nor does sentencing stage: any presumption the word “shall” create (1) whether the conduct of the defendant prosecutor prove death—it who must

that caused the death of the deceased eligible. the defendant is death deliberately and with the was committed expectation that the death of reasonable particular This issue has been raised nu- result; the deceased or another would merous times defendants automatic (2) probability whether there is a appeal to the Arizona Court. the defendant would commit criminal explanation That court’s of the statute is acts of violence that would constitute a The statute takes the human element out continuing society; and threat to imposition penalty the death (3) evidence, if raised whether doing and in supports so the constitution killing conduct of the defendant in ality statute, of the statute. Under the response deceased was unreasonable defendant will stand the same chance of provocation, any, by if the de- receiving penalty judge the death from a ceased. philosophically does who believe in Jurek, penalty 428 U.S. at 96 S.Ct. at 2955. If as from a who proved finds that the state has By taking does. the human factor out beyond a reasonable doubt that each an- sentencing process the death question yes, swer each then the death is then reserved for those are who above imposed. sentence is Id. The first-degree the norm of murderers or system held to be constitutional crimes whose are above the norm of provides presentation because of indi- murders, first-degree legislature as mitigating vidualized evidence. Id. Blazak, intended. State v. 96 S.Ct. at 2958. denied, 643 P.2d cert. Bla Arizona, zak v. 459 U.S. 882 S.Ct. Montana,

In upon capital [103 conviction of a (1982); State Zar impose offense the 149] “court shall sen- [a] agoza, 135 Ariz. mitigat- tence of death ... unless there are Arizona, Zaragoza ing circumstances.” v. Risley, McKenzie (9th Cir.1988) (empha- 842 F.2d L.Ed.2d [103 (1983); added). case, Beaty, State v. sis defendant com- 1356] (1988); plained procedures that the for considera- Fulminante, CR-86-0053-AP tion of factors were unconstitu- WL [1988 1988 Ariz. LEXIS tional. Id. We concluded that the statute June 61427]. applied by the Montana courts was con- stitutional. Id. at 1542. Finally, majority cites Arizona v. Rum Montana, sey, Texas Arizona stat- 81 L.Ed. require utes 2d proposition kind of individualized sen- for the that the tencing precludes mandated the Constitution in Arizona statute individual sen spite of their “mandatory language”. tencing sentencing The judge’s and removes the begin op. at “presumption Maj. However, statutes 1042. with a of discretion. Rumsey decided double jeopardy issue and America, of UNITED STATES constitutionality ap not the statute as Plaintiff-Appellee, Rumsey plied by the Arizona Courts.

104 S.Ct. at 2307. considera- allows statute and Ronald SHERLOCK Arnold the trial mitigating evidence

tion of all Defendants-Appellants. Charley, It such consideration. here allowed court 87-1299, 87-1300. Nos. judge to the trial to allow is constitutional and there evidence weight to the ascribe Appeals, United States similarity to or of death presumption no Circuit. Ninth sentencing scheme. mandatory Aug. 1988.

Argued and Submitted Decided Jan. VI.

CONCLUSION holding that majority’s

I concur in judicial vin- evidence is insufficient

there state- any hearsay

dictiveness harmless. erroneously admitted were

ments at-

However, majority’s constitutional I unsound. issues is five on the other

tack re- majority decision from

dissent as court to the district remand

verse and imposed not sentence

Adamson’s death vindictiveness, prosecutorial a result of manner, or capricious or arbitrary in an by jury. right to trial

in violation statutory aggravat- death sentence “heinous, cruel or de-

ing circumstances channel the inadequately do not

praved” discretion, and the Arizona

judge’s preclude mean- does statute

sentence mitigating evi- of all

ingful consideration death. presumption impose

dence court’s denial district

I would affirm of habeas petition for writ Adamson’s

corpus.

Case Details

Case Name: John Harvey Adamson v. James G. Ricketts, Director, Arizona Department of Corrections

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 22, 1988

Citation: 865 F.2d 1011

Docket Number: 84-2069

Court Abbreviation: 9th Cir.