*1
STATE of POLAND, Appellant.
Patrick Gene
No. 4970-2. Arizona,
Supreme Court of
In Banc.
March
(c) improperly re- the trial court Did expert testimony by an allow fuse to eyewitness identification? refusing (d) err in Did the trial court suppress physical evidence obtained illegal alleged result of an as the search war- search insufficient rant?
2. Trial Issues: admitting (a) err in Did the trial court prior convic- defendant’s into evidence robbery? tion for bank hypno- (b) testimony of prior Was the Sekulski, witness, im- Stanley tized jury? to the properly read reversi- (c) court commit the trial Did gruesome pho- by admitting a ble error tograph into evidence? ruling in Po- (d) light our *5 Corbin, by Atty. Gen. Gerald K. Robert gun was I, supra, taser that a land Phoenix, Gen., Grant, Atty. Asst.
R. evidence, did into improperly admitted appellee. a re- improperly admit trial court Prescott, Hammond, appel- E. Marc. weapon’s purchase, showing ceipt lant. testimony weapon, and for the the box thereon? CAMERON, Justice. failing err in (e) trial court Did the Poland, In State v. prosecution when the grant a mistrial (Poland I), (1982) we reversed P.2d 784 previously undisclosed introduced a convictions for Patrick defendant Poland’s defendant? statement of with degree murder two counts of first failing (f) court err Did the trial a for new of death and remanded sentences jury in- part of its define “intent” remand, re- was Upon defendant trial. abetting? aiding and on struction guilty again a found jury and tried before degree murder of first of two counts Penalty Death Issues: § 13-1105(A)(1). He violation of A.R.S. § (a) 13-703, penal- Is A.R.S. the death A.R.S. again to death. sentenced statute, ty constitutional? § pursuant jurisdiction We have 13-703. (b) pen- reimposition Did of the death §6, 5(3) Arizona Constitu- to Art. alty jeopardy? constitute double §§ 13-4035. tion, 13-4031 and and A.R.S. (c) aggravating Were the circumstanc- questions following raises the Defendant beyond proven found in a es this case appeal: reasonable doubt? 1. Pretrial Issues: (d) improperly re- Did the trial court improperly denied: (a) defendant Was mitigating certain fac- fuse consider change (i) peremptory a by tors offered defendant? judge? (e) proportion- Is sentence defendant’s for cause? (ii) change of a imposed in to sentences similar al improperly re- (b) court Did the trial in Arizona? cases for cause? jurors two fuse to strike Dempsey pathologist was unable to necessary The facts for a determination appeal of this matter on as follows:1 possible rule out a heart as a cause attack At approximately May 8 A.M. on 24 of death. The bodies had been in the water $328,180 a Purolator containing van some no evi- longer. two weeks or There was in cash left Phoenix delivery on a routine guards had dence that the been wounded banks in various towns in northern Arizo- being before in the Al- placed tied water. na. When the van failed make its deliv- though impossible it to determine eries, the authorities were notified. The drugged, they had there was whether been $35,150 abandoned van with some in cash struggle. no evidence of a Divers search- was discovered early day next a short ing the area two other canvas recovered distance off Highway 1-17. bags, containing tarp one and blanket. The evidence that on revealed the morn- revolvers, They brought up also two which ing May 1977, passing a number of belonging guards, to the were identified as motorists had noticed a Purolator van insignia plate bearing license pulled over to the Highway by side of 1-17 Department found on Arizona of Public appeared what police to be a car. Some Safety These were found automobiles. witnesses identified the two uniformed men evidently which had pile near a of rocks as Michael and Patrick Poland. The evi- bag it was recovered fallen out when also dence May showed that on 24 type were of the a diver. The rocks Michael and Patrick Poland borrowed a of Debbie’s along found the shore Cove. pickup truck tarpaulin from their fa- ther, George Michael and Searches of the homes of Early Poland. on May July Michael Poland rented a 1977 revealed boat at the Patrick Poland on 27 Temple Bar gun, Marina on Lake weapons, including Mead. He a taser number of planned stated that he to meet his cash, police- brother large and items of amounts of Patrick at Landing, primitive Bonelli particular interest type paraphernalia. Of camping Lake, area on the and to do some key scanner which a scanner and were fishing. At point, some George Poland’s frequen- capable monitoring radio truck stuck in the sand at the became wa- cies, frequen- listing police local a notebook edge ter’s Landing Bonelli with the tail- *6 cies, gun bearing the receipt for a taser gate facing the water. After their at- cases, Harris, handcuff and a name Mark tempts to failed, extricate it had the Po- cars, Polands’ rented gunbelt. Both of the lands called towing service. Stan Sekul- Malibus, light-colored had siren- Chevrolet ski operator was the of tow truck. A activat- type burglar alarms which could be days later, few the Polands returned their Evi- from inside or outside of the car. ed father’s truck tarp, with a explaining new the Polands to the also connected dence the old one had been they ruined when “light bar” or rack which purchase of a placed it under the of wheels the truck for placed top of an automobile and could be traction. light a law enforcement would resemble later, body of Three weeks Cecil bags found in the or rack. The canvas bar Newkirk, guards one of the Purola- purchased were shown to have lake been van, Cove, surfaced a small tor on Debbie’s by a Mark Harris. inlet on the of Lake Mead. Nevada side Although Michael nor Patrick Po- neither body partially by a canvas covered the evidence regular employment, had land later, rangers searching A bag. park week large they made numerous showed body the area discovered the of the other July of 1977. during June and purchases guard, Dempsey, a short Purolator Russell appliances, furni- purchases These included place Cecil Newkirk’s distance from the ture, a business. Most of motorcycles, and Autopsies had been revealed body found. by in cash or purchases were made probable the most of death was cause drowning, of cashier’s check. although in the case Mr. I, supra. of facts Poland
1. These facts are to the statement identical any case took the a. Entitlement. criminal defense alibi. Patrick Court, party Superior any shall be he and his and testified both stand change of request judge. to entitled disguised had themselves as law brother * * * * * # drug officers and robbed deal- enforcement They early 1977. ers on three occasions Filing. A notice of c. Time for dealing in they filed, had also been testified judge or infor- change of shall be made, days to the Puro- gems request several months within 10 after for mal following: that, May any of on 24 lator incident and turquoise of taken a load raw they had way of Vegas and returned Lake
Las (2) Filing Ap- from of the mandate camping. do some Mead to Supe- Court with clerk pellate Court; rior and Patrick Poland were convict- Michael 10.2(a), (c)(2), Arizona Rules Crimi- Rule appealed They ed. and we reversed and Procedure, A.R.S. nal upon jury misconduct. remanded based Poland I mandate was remand, Our filed and I, supra. On defend- See Poland May parties agree mailed on 1982. The again convicted and sentenced to ants were (10 days days, pursu- that defendant had 15 appeal death. We consider Patrick 10.2, supra, days Rule and 5 for ant to Poland. 1.3, pursuant Arizona mailing to Rule Procedure, A.R.S.) to Rules of Criminal PRETRIAL ISSUES disqualify judge without cause. move July, until 19 The motion was not made Change Judge a. days some 54 after the issuance of the The mandate in Poland I was filed mandate. was too late and the motion This Yavapai untimely. properly and mailed to the Coun- was denied as Court ty Superior May on 26 Court On contends, however, Defendant that strict attorney county June the moved dismiss compliance rule be with the should waived the case. The motion dismiss was upon he because relied the State’s 8 June June, time was heard until which it and, therefore, to dismiss did not motion special deputies July, go denied. On 19 believe that he would to trial. Had the prosecute granted, filed to dismiss been a motion appointed to and defendant motion change judge for would have been un- judge pursuant change motions necessary. 10.2, Rules Proce- Rule Arizona of Criminal dure, A.R.S., disqualify and to Admittedly, compliance strict 10.1, Arizona pursuant to Rule cause rule can waived with a like ours where Procedure, 17 A.R.S. of Criminal Rules *7 challenge diligent is made peremptory the heard and denied motions were
These
practicable.
ly
as
as
Smith
soon
challenge
peremptory
(Alaska 1980)(“In
The
judge.
State,
another
616 P.2d
untimely,
challenge
made
because it was
each
was
almost
was denied
sofar as
motion
immediately
parties
learned of
after
change
judge for cause motion
and the
of
trial,
assignment for
it cannot be
judicial
prejudice
or
because bias
was denied
challenge were
rights to
that
their
said
not shown.
untimeliness.”),
Riley
through
waived
1980)
(Alaska
(strict
State,
608 P.2d
Judge
Change
Peremptory
of
i.
exer
where counsel
waived
compliance was
defendant’s contention
being
We first consider
upon
promptly
challenge
cised
however,
case,
committed reversible
court
that
instant
In the
appointed).
peremptory
protect
motion for
to
denying
diligently
in
his
act
error
did not
defendant
mo
challenge rights. The
regarding
change
peremptory
of
Our rule
judge.
a
his
time for
not extend
tion to dismiss did
upon request states:
change
judge
of
filing
change
judge.
ground
the motion
of
The
change
for
We
for
was the
no
the time
find
reason to waive
limits of
judge's participation
prior
in
trial. This
the rule.
was known
of
at the time
remand. Admit-
tedly,
may
defendant
not have known the
Furthermore, by participating in
judge
retry
case at
time.
hearings,
per
these
defendant waived his
aware, however,
The defendant was
emptory challenge rights pursuant
to Rule
judge’s participation by the time of the
10.4(a), Arizona Rules of Criminal Proce
hearing
first
the motion
dismiss on 21
dure, A.R.S.,
pertinent
provides
which
change
June. Defendant’s motion for
of
part
party
right
his
loses
under
“[a]
judge filed
judge
July
of
came too late.
change
Rule 10.2 to a
when he
participates
judge in any
before that
con
**
*
Second,
assuming
even
the timeli
any
tested matter
in the
[or]
* *
of
disqualify,
ness
motion
its denial
words,
In
pretrial hearing
other
was still correct. Defendant
relied
party participates
hearing
upon
which
Vickers,
State v.
fact,
involves a
of law or
states:
contested issue
which
right
challenge
peremptory
to a
We have held that even though the
Itasca State Bank v.
judge is waived.
judge
prior knowledge
had
of defend-
Superior Court,
Ariz.App.
445 P.2d
acts,
past
ant’s
bad
he need not disquali-
(1968).
hearings
in this case in
himself,
fy
long
so
facts are those
par
volved contested
insofar as the
issues
ordinarily
which would
be found in a
disagreed
question
ties
important
on the
presentence
report and the defendant
requested
whether the
dismissal would be
upon
knew the factual basis
which the
prejudice.
with or without
This case can
judge imposed the sentence.
In a death
City
distinguished
then be
Sierra
from
case, however,
penalty
which is treated
Enterprises,
Inc.,
Vista
Cochise
differently
cases,
penalty
from non-death
(App.1979),
Ariz.
First, tinct timely. was not motion Vickers would put be able 10.1(b), aside Rule Arizona Rules Criminal Procedure, have A.R.S., the bias that he would because of states: *8 knowledge the other crime. the facts
Within days discovery after that by In the retrial of the same crime grounds change judge, exist for but judge, only there is same hearing not after commencement of a or repetition of facts —the same trial, the same party may file a motion verified by judge any that be heard by moving facts would party affidavit of the and these alleging grounds tries the case. Under circum- specifically the for the who stances, change. prior said that it can not be jury, anything time not discuss that prejudiced the second permit anyone place We find no error. took else around. you anything talk to about that took Refusal to Strike Jurors b. place prior? in argues the court erred Defendant that Probably A could. jurors refusing for cause. to strike two Q You could do that? on dire that Matthews testified voir John A Probably. the case from he had heard and read about question, response prosecutor’s In to the radio, T.V., He answered newspapers. juror he would be able testified that questions as follows: the court’s if guilty failed in vote THE BY COURT: proof. burden of specif- any Q you remember Do you that have any ics of of the accounts response question to the of defend- on or seen television or heard about ant’s counsel: radio? Q Judge you you Haven’t told the that
previously opinion that Mi- formed Well, they guilty Patrick Poland were just going A. that were chael and them, retry seen you have a retrial. based on what had read and about the case? Q. is you aware this a retrial? So are Yes, right. A. Q. going to the earlier ac- Now back in guilty A He found the first case. you you that had seen and as counts Q they Right. is the fact that And case, through period in that
followed case, is guilty in the first were found you any your opinion time did form your going to influence somehow concerning guilt or the inno- own you juror if as a in this case? decision sit cence of Defendants? A No. say A I so. would Q your out of totally wipe You can mind? Q you you if Do understand Well, A far as I know. as picked juror as a in this case it would be necessary only you to decide this case testimony
on the evidence and realize, Matthews, Q you Mr. Do presented here the courtroom? charged is anyone with a crime who A Yes. by prov- until presumed innocent the law Q you put And that would have to from guilty beyond en a reasonable doubt? your anything you mind had seen or Yes, A sir. heard or or knew about the case read any form whatsoever? question:
A Q you Yes. one more Let me ask today you look you sit here Q you that? Do understand Defendants, you knowing what these A Yes. knowing about about the know Q you you feel could do that? Do any feel- prior proceedings, you do have I probably A could. ing your these men mind that Q you fairly and im- you Do feel could guilty? partially judge solely case on what this A No. presented court- you here defendant, juror objected room this trial? The other Benavidez, fol- testified as Cynthia Dea Probably A could. lows: could, Q you you when went And that room, BY THE jury you were a member COURT:
to the *9 Benavidez, law, Q you you your duty indicated would be to follow that Mrs. you only go and then into heard or know then and would had seen or read or some- jury jurors with the room other and thing right? about you you Do could decide the case. think Yeah, A have seen I on T.V. news and you you think could not? do that or do stuff. A I think I could. Q Okay. You it on have seen T.V. ****** prosecutor attorneys and for defend- Cynthia questioned ant also Dea Benavidez A Yes. as follows: Q been, And when would that have BY THE PROSECUTOR ma’am? Q fairly you Would be able to and im- Oh, A I exact don’t know the time. partially judge case so that and, up you Just when the trials come proved end of if the the case State had know, you see on news. what T.V. guilty beyond Defendants reason- you guilty, able doubt could find them Q you Okay. you Do were realize and if the has its State failed in burden jury you selected as member of this you guilty? would find them not Could guilt would to decide have innocence you do that? only
based presented on what was here Sure, A sit if I and listen it all I’m in this courtroom? my sure open. mind could still be Yes, A what I that’s know. Q you Okay. you you think Could —do Q you you And do think do could that? ability, would I am have the and sure television, having watched that occasion- A No. back, ally people will come Q you put You don’t think all could —memories programs you something saw on tele- things you have your seen out mind talking vision that a witness is about and decide this case only on evidence you now. Would be able set aside testimony presented and here in the you that which saw on television and courtroom? perform- each witness and their Well, maybe could, A I really because I ance testimony and their their evi- and close, haven’t just— followed that but I your only dence and base decision on that Q I a tough question. know it’s nothing evidence and else? just A from thought But what I I know could, Yes, A I really because I don’t they guilty. were much remember that about it. Q I tough. know this is We have to BY DEFENDANT’S ATTORNEY your look into mind. Q you All right. And do understand A I I think have already formed an that Michael Patrick and Poland have opinion, I—I but don’t that much know right trial? to a fair stuff, about and you Court know. sys- A Yes I I understand. know Q Well, you in a Court would have an tem. I’m thankful for that. opening presented by statement both Q Right. And that if the hadn’t action, you sides in the would have wit- burden, proved you its then all had nesses placed who would be under oath heard, you read, all had could you take the stand and sit where you used Do to otherwise convict them. sitting, they questions. would be asked understand that? testimony After all the evidence and had A Yes. presented, lawyers been then the would argue the they case the evidence as it, murder, I you Q
saw and then you charged would instruct If with governs ma’am, you the law that this case and it feel hav- would comfortable *10 398 Montano, 605, cretion. State v. your 136 Ariz.
ing someone with
frame of mind
1320,
(1983).
knowing
you
sitting
607,
know
on
Because
what
667 P.2d
1322
you?
jurors
were
jury
record
the contested
shows
through the voir
adequately rehabilitated
A No.
dire,
abuse its discre-
the trial court did not
Q
you
going
You think
know is
to
what
find no
failing
to strike them. We
tion
influence,
subconsciously, your ver-
even
error.
dict
this case?
well,
I
A
like —um—if
had to
I don’t —
Expert
Testi-
Eyewitness Identification
c.
know,
everything, you
listen
sit and
to
mony
might
opinion,
make an
it
be differ-
then
ent.
trial,
sup-
Prior to
moved to
State
Q
right
you
being
eye-
tried
press
expert
testimony regarding
But
now
were
you
murder
wouldn’t want someone
court
The trial
witness
identification.
judging you?
of
your
argues
with
frame
mind
motion. Defendant
granted the
court abused its discretion
already
A
I have
Well not from what
expert
of
tes-
allowing
presentation
not
saw.
We
timony
eyewitness
on
identification.
Q
I
That’s what mean.
agree.
not
do
A No.
preclusion of ex
The test for
subject
pert testimony “is whether
BY THE COURT:
knowledge
inquiry is
of such common
one
line,
Benavidez,
Q
has
Mrs.
The bottom
ordinary
could
people of
education
you
you
not
feel if
to be whether or
intelligently as the
a conclusion as
reach
jury you
judge this case
on the
could
**
Owens, 112 Ariz.
*.” State v.
witness
testimony
solely on
evidence and
223, 227,
695,
(1975). Expert
P.2d
699
540
presented
on
here in the courtroom and
is
testimony
eyewitness identification
on
that basis render a verdict?
it
usually precluded because
invades
A
I
I think
could do that.
what
jury to determine
province of the
juror
held
We have
that because
give
eye
it
to
weight or
wishes
effect
opinions
has
does
preconceived notions or
testimony.
usually
is
not
It
witness
necessarily
incompetent
render him
testimony.
subject
expert
proper
State
impartially
a case.
fairly and
decide
Clabourne,
54,
335,
v.
Ariz.
690 P.2d
have, however,
142
previously
We
526,
Tison,
(1984);
State
63
129 Ariz.
testimony
on
expert
the use
sanctioned
533,
denied,
335,
(1981),
P.2d
342
cert.
identification:
eyewitness
180,
We not set aside a will identification eyewitness dence on upon juror absent a clear challenge Amaral, 488 F.2d States United dis- showing abused its that the trial court (9th Cir.1973). analysis, In its 112 Ariz. at P.2d *11 out, the court set which probative four criteria testimony value of the did not applied should in order to determine be prejudicial Chappie, overcome the effect. admissibility testimony. of such supra. no We find error. (1) (2) qualified expert; prop- These are: Suppression d. Material of Evidence (3) subject; conformity generally er to a (4) accepted explanatory theory; pro- During investigation of compared prejudicial bative value ef- crimes, agent an FBI learned that the home approve fect. at Id. 1153. We this test renting Michael been was Poland had and find that the case bar at meets these Posing buyer, agent sale. as a went criteria. through the house and later testified as to recognize We that the cases have what he this saw. Defendant claims was subject uniformly considered the have af- illegal entry. questions an Defendant also rulings firmed trial court denying admis- sufficiency support in of an affidavit of However, type testimony. sion of this of a search warrant. reading a careful of these cases reveals We considered the same issues based many of them contain fact situations case, upon prior in same facts Po- which fail to meet the Amaral criteria or I, 277-78, land 132 Ariz. at P.2d at legal principles decided on which dif- 792-93. We found no error then and we fer from those we in follow Arizona. find no error now. Chapple, (1983). P.2d holding Our Chappie in peculiar
was
TRIAL
limited
of
ISSUES
facts
noted,
case. As we
direct or circum
“[n]o
a. Prior Conviction
stantial
any
evidence of
kind connected]
crime,
defendant
other than the testi
Defendant contends that the trial court
* *
mony
eyewitnesses]
of
Id. at
[the
by allowing
abused its discretion
defendant
(footnote omitted).
We
the
of
prehypnotic
mitigate
danger
record to
the
case,
In the instant
one of the vic
subsequent
contaminating
of
hypnosis
tes
photo
used
tim’s co-workers
the contested
timony
of
recalled
hypnosis.
facts
to
identify
by
type
the
graph to
the victim
Although
Id.
we continue
to the
to adhere
wearing.
was
medical ex
uniform he
expressed
view
in
videotaping
Collins that
performed
autopsies upon
aminer
the
who
preferred
the
method
preserving
photograph
the victims testified that the
recall,
prehypnotic
in the
instant
difficulty
he had
deter
illustrated
police reports
FBI and
adequately enabled
mining
decom
a cause of death because of
parties
segregate
to
prehypnotic
Furthermore,
position.
photograph
post
recall from
hypnotic testimony. From
victim
on. Inves
shows the
with his watch
reports,
these
prepared prior
any hyp
tigators hypothesized
of death of
sessions,
notic
the time
transcript
was edited to
the time this
only
reflect
victims
reference to
Sekulski’s prehypnotic recall.
stopped.
attendant risks were
watch
further minimized
through
reading
of Sekulski’s cross-ex
gruesomeness
not
We do
believe the
entirety.
amination in its
Id. Further
photograph outweighed
probative
its
more,
elected,
had defendant
have
he could
McCall,
147, 157,
value.
139 Ariz.
expert
introduced
testimony to
show
920,
(1983);
677 P.2d
Rule
Arizona
prehypnotic
Sekulski’s
recall was tainted
Evidence,
Rules of
17A
We find no
A.R.S.
by
subsequent hypnosis.
his
Under
Id.
error.
facts,
using
these
the risks inherent in
testimony
previously hypnotized
wit
Receipt
d.
Admission
Taser Gun
ness
were minimized
accordance with
Box
Gun
our decision in Collins. We find no error.
I,
that,
supra,
In Poland
we held
Photographs
c. Gruesome
gun
improperly
taser
was
admitted into
evidence because it was never connected to
Defendant contends that the
stated,
admitting two
court abused its discretion in
the crime. We
that the
purchase
receipt
weapon’s
all
parties
was
other
existence
such
properly
material,
seized and admitted at trial.
Id.
appro-
additional
make an
Ariz. at
P.2d at
796. We
priate disclosure.
explained
receipt’s
relevance as fol- We find no error for two reasons.
* * *
gun receipt
lows:
taser
indi-
“[t]he
First, the
ob
defendant failed to
it
gun]
purchased
cated that
had been
[the
ject
stand.
until after
witness left the
by
accomplice,
alias
suggesting
It was
an abuse of discretion to fail to
may
purchased
contempla-
it
have been
impose
under
sanctions
such circumstanc
tion of the
another
crime or
involved
Gambrell,
es.
116 Ariz.
See State
the crime.”
gators that defendant Poland re- f. of Intent Definition purchased he had vealed to him that jury as follows: court instructed disclosing to lightbar. Without defendant persons All concerned in the commis- statements, the nature this witness’s crime, directly they whether sion of a at presented the evidence trial. De- State constituting the offense commit the act object did until after the wit- fendant not in its or abet commission aid and ness had left the stand. any crime so committed. principals 15.1(a)(1),Arizona Rules of Rule Criminal produced have evi- The defendants Procedure, A.R.S., provides that 17 they present were not at dence that must State make available defendants place alleged crime was time and relevant written or recorded statements of you If have a reasonable committed. against them it has such infor- witnesses defendants doubt whether Rule reads: mation within its control. 15.6 place alleged and present the time at any If at time after a disclosure has you find the must crime was committed made any party been discovers additional guilty. defendants information which or material would language of us to the cite Defendants subject to had it been disclosure then aiding abetting, known, defining notify party promptly statute such shall
403 § 13-301, provides perti- conjunction which A.R.S. sufficient read in when part: nent with an instruction defendant * * guilty could not be in the *, found absence person, means a “accomplice” who 366, 371, George, intent. 95 promote State v. Ariz. with the intent facilitate 899, (1964)(although of an offense: 390 P.2d 904 element commission of “intent” omitted from instruction on aid- ing no abetting, reversible error found counsels, Aids, agrees to aid or instructions, whole, where read as a indi- attempts person plan- to aid another guilt cated that could not be found absent committing ning or the offense. intent). requisite We believe that added). (Emphasis They contend that the George dispositive. is We find no error. phrase omission of the “with the intent to” given from the instruction error. We agree.
do not DEATH PENALTY ISSUES particular of a
Lack instruction is instructions, not fatal where read as a Penalty a. The Death Statute whole, adequately set forth law. Defendant contends our 329, Villafuerte, infra 142 Ariz. 690 § statute, 13-703, penalty A.R.S. is 48; 383, P.2d at Axley, State v. 132 Ariz. previously We have dis unconstitutional. 392, 268, (1982); 646 P.2d 277 State v. posed question. Zaragoza, of this State v. 56, 59, Rhymes, 939, Ariz. 129 P.2d 68, 63, 659 P.2d cert. denied, 1124, 3097, S.Ct. jury the instant was also (1983); Clark, L.Ed.2d 1356 State v. instructed: 428, 895, Ariz. 616 P.2d cert. prove The State must that the Defend- denied, 449 U.S. ants have done an act is which forbidden (1980). Furthermore, L.Ed.2d 612 our sen they law and that intended to do it. tencing capital scheme for cases is neither may You determine that the Defendants rendered unconstitutional because its do they intended to the act if did it Roscoe, jury participation, lack of State v. voluntarily. Ariz. P.2d (1984), to re nor its failure because A which perpetrated by any murder ag *15 quire beyond a reasonable doubt willful, premeditat- kind of deliberate and outweigh miti gravating circumstances killing ed degree. is murder of the first gating Carriger, circumstances. State v. All other kinds of murder of the 159, 142, 991, Ariz. 692 P.2d you If degree. second have a reasonable (1984). which degrees doubt about of the two of committed, you murder was must decide Additionally, we believe death degree it was second murder. properly applied penalty was to the facts of provides
this case. The record
substantial
support for the conclusion that defendant
aforethought may
express
Malice
be
or
killed,
kill,
attempted to
or
to kill.
intended
implied.
express
isIt
there man-
when
Florida,
782,
Enmund v.
See
U.S.
unlawfully
ifested a deliberate intention
(1982);
S.Ct.
abandon or heart. Double Jeopardy b. added). (Emphasis jeop- Defendant contends that the double instruction, though ardy provisions not even of United States intent, mentioning requisite Arizona reimposition element Constitutions barred supra, single penalty aggravating in this case. We do overturned the death previous agree. upon circumstance which his not based, sentence that is that the death was Jeopardy The Double Clause of the especially murders were committed Fifth Amendment to the United States Con heinous, manner, A.R.S. depraved cruel or part, pertinent “nor provides stitution § I, 13-703(F)(6). holding in Poland Our any person subject shall be for the same penalty simply death put jeopardy twice of life offense to be solely upon aggra- not based could * * limb Our constitution con or state was in- vating circumstance because there provision. Ariz. Const. Art. tains similar support This evidence to it. sufficient §II, Supreme 10. Court The United States holding to a death was not tantamount jeopardy consequences has held that double “acquittal.” penalty sentencing proceeding attach to a whenev “heinous, we find below Because Bullington trial. v. Mis er it resembles a circum- depraved” aggravating cruel or souri, 101 S.Ct. 451 U.S. again adequately proven, not stance was stated, (1980). later L.Ed.2d The Court question of we need not reach the whether impri “respondent’s initial sentence life sentencing jeopardy precluded the double acquittal undoubtedly an sonment was aggravating cir- refinding this court from pro issue the merits of the central cumstance. ceeding appropri death was the —whether punishment respondent’s offense.” ate Circumstances Aggravating c. Proof of — -, -, Rumsey, Arizona v. cir- aggravating The trial court found L.Ed.2d cumstances: committed the 1. That defendant Bulling- heinous, contends that cruel or “especially Defendant in an crime § Rumsey reimposition bar 13- ton A.R.S. depraved manner.” 703(F)(6). in the case. We do penalty death instant cases, agree. respective In those “as That the was committed crime of im defendants were sentenced to terms expec- receipt, or in for the consideration remand, sen prisonment. Upon each was anything pecu- receipt, tation of § States Su 13-703(F)(5). tenced to death. United niary value.” A.R.S. Jeopardy preme Double Court held “previ- had 3. That defendant been imposition pen Clause barred felony United ously in the convicted of holdings alty those cases. These vio- involving use or threat States respective § fact that upon based 13- person.” A.R.S. lence on another (cid:127) sentencing procedures tri resembled state 703(F)(2). Accordingly, because each defendant als. cases, will, in all death This court impri term of initially sentenced to a facts to independent review of the make an sonment, “acquitted” of impliedly he was aggravating and determine itself penalty. the death *16 Smith, 138 v. factors. mitigating State sen 17, (1983), In the defendant was 79, 85, instant 23 cert. Ariz. 673 P.2d — 1429, his trial. -, at the end of first 79 denied, tenced to death 104 U.S. S.Ct. Richmond, implied “acquittal” of the (1984); There no v. L.Ed.2d 753 State 62, 57, Rumsey 312, 317, do P.2d cert. penalty. Bullington death 666 136 Ariz. — 435, not, therefore, -, 78 apply. Knapp denied, 104 v. Card S.Ct. See U.S. 1253, 1264-65(9th Cir.), well, (1983). cert. 667 F.2d L.Ed.2d 367 473, denied, 1055, 103 S.Ct. 74 459 U.S. sentencing that the contends Defendant (1982). L.Ed.2d 621 findings murders in that the court erred its heinous, cruel “especially that he was case were argues, Defendant § 13-703(F)(6). We depraved.” or A.R.S. “acquitted” penalty impliedly I, agree. level Poland appellate at the because
405
372,
I, supra 132
finding of this
circumstance
The issue focuses on the state of mind of
§
(then
in former A.R.S.
13-
supra.
contained
Lujan,
the killer.
v.
State
454(E)(6),
following
making
for the
reasons:
difficulty in
this determination in
very
the case at bar is that there is
little
interpreting
aggravating
cir-
evidence in the record of the exact cir-
cumstance that the offense was commit-
guards’
Al-
cumstances of the
deaths.
heinous, cruel,
especially
or
ted
an
though
may
state mind
defendants’
manner,
depraved
we have stated:
* *“
*
inferred from their behavior at or near
cruelty
referred to
offense,
Lujan,
time of the
v.
State
pain
the men
statute involved the
supra,
nothing
we know
of the circum-
physical
upon
tal and
distress visited
guards
stances under which the
depraved
the victims. Heinous and
hostage.
held
used in the same statute meant the
prove
The State must
the existence of
perpe
mental state and attitude of the
aggravating
beyond
circumstances
a rea-
reflected in
trator as
his words and
Jordan,
sonable doubt. State v.
126
Clark,
actions.”
v.
126 Ariz.
State
cert,
283,
825,
denied,
Ariz.
614 P.2d
449
428, 436,
888,
(1980),
616 P.2d
cert.
986,
408,
S.Ct.
placed in the
and there was no
42,
Villafuerte,
v.
690 P.2d
sign
struggle.
Cruelty
has not been
are,
(1984).
therefore, compelled
We
beyond
shown
a reasonable doubt. State
again
finding
set aside the
that the mur-
Ortiz,
Lujan,
supra;
State v.
“especially
ders were committed
hei-
(1981);
Ariz.
Neither does the evidence anything pecuniary receipt, of value.” finding that the murders were heinous or § 13-703(F)(5). This circumstance A.R.S. depraved. These terms were defined in having applied to murders a “financial supra: Lujan, State v. Villafuerte, supra at motivation.” State v. hatefully shockingly “heinous: evil: 47; Graham, 690 P.2d at State v. grossly bad *17 209, 212, 460, (1983); Ariz. 660 P.2d 463 428, 436, Clark, v. 616 P.2d State debasement, denied, 1067, “depraved: 888, 896, by marked 449 101 cert. corruption, perversion 796, (1980). or deteriora- 612 In the S.Ct. 66 L.Ed.2d 406 case, part contradicted defendant’s murders were of evidence was
instant
that
pecuniary
The
reasoned
prior
items of
conviction.
court
scheme to obtain
overall
Nash,
392, 405,
mitigat-
reputation
Ariz.
was not a
value.
v.
143
defendant’s
State
222,
(1985).
falsely
the facts
Under
it was
built.
ing
694 P.2d
235
factor because
“pecuniary gain” finding
of this
have the burden of
Defendants
clearly
was
warranted.
proving
by preponder
a
mitigating factors
maintains, however,
Defendant
McMurtrey,
v.
ance of
evidence. State
incorrectly
sentencing
found
that
court
72-73,
1099,
71,
1100-
Ariz.
691 P.2d
143
contained in
aggravating circumstance
(1984).
sentencing
this
The
court and
1101
§ 13-703(F)(2):
previ
he “was
that
A.R.S.
may
cognizance
on
of
appeal
Court
take
in the
ously
felony
of a
United
convicted
cir
tending
mitigating
to refute a
evidence
use or threat of vio
involving
States
Smith, 131 Ariz.
v.
cumstance. State
argues
person.”
lence
another
He
that
P.2d
not have been found
this factor should
of
absent an examination whether violence
conflicting
as
light
of
evidence
prior
for
played a role in his
conviction
reputation, we do not believe
to defendant’s
argument
robbery. This
was most
bank
by prepon
has
a
that the defendant
shown
rejected in
recently raised
and
State
good
defendant’s
of the evidence
derance
Nash,
P.2d
at
at
where we
mitigating
reputation
a
circumstance.
as
judicial
may
held
notice
be taken that
that
Second,
also claims er
defendant
definition,
felonies, by
certain
involve vio
sentencing
of
discussion
ror to the
court’s
against
lence
others. See also State
family
mitigating
as
circum
ties
a
441, 448,
close
Watson, 120
P.2d
Ariz.
denied,
stance:
(1978),
440 U.S.
cert.
(“Fear
(1979)
of
S.Ct.
L.Ed.2d
family
The Court does find
close
robbery
force is an element
and
De-
exist between the
ties
the—that
robbery presumes
that such
conviction
as a
their children
fendants’ families and
Furthermore,
present.”)
fear
defend
was
mitigating
I don’t want
circumstance.
principles
Jeopardy
ant’s claim that Double
opinion
as an
this to be misconstrued
en
bar the use
his
conviction to
this in fact made them
Court that
this
merit.
sentencing
hance
is without
On
con-
good
and fathers.
husbands
LeMaster,
Ariz.
669 P.2d
opposite
true.
trary, the
would be
exact
(App.1983).
impossible to conceive of
It would be
committing
and fathers
good husbands
Mitigating
d:
Circumstances
nature,
thereby bear-
of this
and
crimes
mitigating
The trial court found as
cir-.
being good family man.
ing the aura of
family
close
cumstances the defendant’s
only possible self-justifica-
suspect the
I
ties,
prisoner.
that he was model
and
you
may
both
tion that
be available
mitigating
court
that these
found
your
chil-
you
did this
that
somehow
“sufficiently
sub-
circumstances were
families,
quite the
and
but of course
dren
§ 13-
leniency.”
to call
A.R.S.
stantial
result,
you have
opposite is the
703(E).
families,
your
I sus-
destroyed
fact
you
do
thing
could
pect
the best
relating
arguments
two
Defendant raises
point
to admit to them
would be
First,
ar-
mitigating
circumstances.
he
offenses,
these
you
committed
have
sentencing
gues
court’s failure
it,
try
let
up
them
them
let
face
reputation
mitigating
find
cir-
good
will
lives in a manner that
prepare their
not agree.
We do
cumstance
error.
future, other-
to exist in the
permit them
points to numerous letters
Defendant
forever.
you
destroyed them
wise
have
acquaint-
by family members and
written
the court
reputation.
Defendant contends that
attesting
good
to his
ances
aggravat-
court, however,
as an
sentencing
using mitigating
factor
found this
*18
407
Just,
ing
State v.
contrary
prior
factor
to
138
fact
The
that defendant had a
con-
534,
(App.1983) (where
involving
Ariz.
the fact he was model leniency stantial call for have been Carriger, State v. 142, 143 Ariz. 161-162, shown. 991, (1984), 692 P.2d mitigat 1010-1011 are judgments ing are and sentences af- sufficiently factors substantial to call firmed. leniency. We penalty believe the death imposed should be in this case. HOLOHAN, J., C.J., HAYS, and concur. Proportionality e. GORDON, (concurring Vice Chief Justice part, dissenting part): in
We conduct a proportionality re part view independent of our review to disposition Regarding the of defendant’s determine “whether the sentences of death claim, peremptory change I concur or disproportionate excessive to the result for different reasons than penalty imposed cases, in similar consider I, majority. stated dissent ing both the crime and the defendant.” reimposition affirming from death Villafuerte, supra State v. Ariz. sentence this case. 332, Richmond, 51, 690 P.2d at State I Poland filed our We mandate 41, (1976). Ariz. 560 P.2d May days immediately In the following Yavapai County this mandate the Our review indicates that defend Attorney’s office avowed to at- defendant’s ant’s proportionate sentence is to sentences torney retry it would not case. imposed by upon this state other defend County Attorney also made statements ants having who have committed murders press expressing to the inten- same degree similar of aggravation. have We attorney upon tions. Defendant’s relied upheld imposition death sentence private public representations. these involving numerous cases two or more aggravating mitigating County factors and no fac June Yavapai On 1982 the sufficiently tors Attorney charges substantial to call for le moved to dismiss the niency. E.g., Carriger, State v. supra; against defendant. On June Fisher, prosecu- hearing Ariz. 686 P.2d trial court held a on the Blazak, (1984); State v. prosecutor tor’s motion where stated he (1982). P.2d 694 upheld renewing We have also He his motion to dismiss. penalty argued where as here the crime is that the state had lost contact with purpose witnesses, died, the sole gain, of economic still oth- certain others had Hensley, State v. testify, Ariz. 691 P.2d ers that both were reluctant serving year defendants were 99 and *19 408 with or motion was to be without the er prison
sentences federal for convictions was never discussed contested arising ques- prejudice the from same facts. He also hearing. simple A way at the re- any testimony admissibility tioned of judge to by defense counsel quest previously hypnotized pros- The a witness. prejudice hardly a dismissal with consider agent ecutor also noted that the FBI any legal a real of is- contest constitutes charge of the agreed case that chances “extremely sue. prosecution successful poor.” joined the attorneys Both defense reached agree with the result I prosecutor’s Court to motion and asked the defense counsel majority, because with give due to a dismissal consideration timely challenge to file peremptory a failed
prejudice under the the evidence. state of judge judge after the denied the of motion to Once defense dismiss. that until state’s majority
Unlike the I believe judge trial became aware that the had counsel 21st counsel hearing, the June defense trial, longer reason- change he could no of wanted peremptory to file no need upon promise ably rely prosecutor’s County Attorney never judge notice. The Rule prose he would dismiss the case. See he would that gave any indication that A.R.S.; 16.5, Ariz.R.Crim.P., contrary, he insist 17 To cute defendant. (1979) Johnson, not, P.2d 514 counsel would and defendant’s ed he does sole discretion to every right rely upon (prosecutor these assur not have had Further, dismiss; Superior defense counsel had no decide whether ances. may order that way knowing judge good trial would on cause shown of that the Court dismissed). As defense deny the motion to Defense coun be prosecution dismiss. fact, reasonably conclude, notice of peremptory sel could failed to file a that counsel days after the moving judge change judge for a change of would be within not time- hearing, futile or even antagonistic in view of the June 21st the motion appearance again ly- would not case go I majority’s to trial. con believe the the death reimposition from I dissent Ariz.R.Crim.P., 10.2, struction of Rule In I this Court reversed penalty. Poland
A.R.S., is too harsh because it would re “conviction” for penalty death defendant’s quire lawyers per defense to file notice The United lack of sufficient evidence. change emptory judge even awhen trial Supreme has held such Court States improbable. seems as a fact- appellate reversal is the same an addition, acquittal
In I defendant. A disagree by participat- finder’s ing acquittal” in the is final for double penalty state’s motion to dismiss defend- “death right purposes, his the death sentence peremptorily jeopardy ant waived chal- and retried, after lenge judge. even majority The claims this issue should guilt or innocence hearing entirely involved a matter of law new trial on the contested in that the cited or fact state wanted a dismissal issue. See authorities infra. prejudice suggest- without while defendant jeopardy The double rule forbids retrial By partici- with prejudice. ed a dismissal acquitted of of a defendant who has been pating in a contested matter in front of the charged conviction is crime or whose judge, waive defendant would his appeal because of insufficient reversed judge. right peremptorily challenge Missouri, 451 Bullington evidence. 10.4(a),Ariz.R.Crim.P., 17 A.R.S. Rule L.Ed.2d U.S. (1981); States, 437 U.S. majority has a strained view Burks v. United taken My reading the record S.Ct. L.Ed.2d of the record. Supreme objection Bullington, no United States
reveals that the defendant had
principles applicable
these
dismiss but asked Court made
to the state’s motion to
when
dismissing
sentencing proceedings
death
judge to
the case
state
consider
a trial. The
proceedings
the mo-
resemble
prejudice.
with
denied
such
dismiss,
Arizona’s
specifically
later
held that
question
of wheth- Court
tion to
sentencing procedure
Bullington
Rumsey.
is a separate
it stood before
trial for double jeopardy purposes,
majority,
thus
According to
invoking all double jeopardy protections.
I, however,
holding
Poland
“Our
—
Rumsey,
-,
Arizona v.
penalty
the death
could
simply
*20
S.Ct.
Texas reversed the
or innocence
phase of a
legal
defendant’s trial for
error
FELDMAN, Justice:
imposition
penal-
reversed
of the death
I concur in Vice
Justice
Chief
Gordon’s
ty for insufficient evidence.
Brasfield
*23
special concurrence and dissent.
State,
(Tex.Crim.App.1980).
Greene, held that the defendant could not
again capital be tried for murder where the
state seeks
penalty.
the death
The United
Supreme
States
Court cited
Brasfield
Bullington.
footnote 9 of
States, 437 U.S. 98 S.Ct. (1978);
L.Ed.2d 1
Massey,
Greene v.