*1 698 P.2d 183 Arizona, Appellee,

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. 626 P.2d 1099 we is an appearance believe that there it hearing which was held that a on a impropriety judge when a who has sen- stipulated, uncontested, and therefore mo tenced the defendant death in a to dismiss with did prejudice tion not result case, also tries same defendant a waiver. potential another penalty offense. judge should have recused himself Change ii. of Judge for Cause trying from this defendant for the sec- Defendant next maintains that he was ond murder. judge denied fair trial because the who I, supra, sentenced him to death in Poland 675 P.2d presided argues over his retrial. He Vickers, (Citations omitted.) change judge cause, his motion for judge had the same sentenced defend- therefore, granted, been should have to death in prior ant but different murder alternatively, it error that was for the trial us, Unlike before case. the case which judge not to have recused himself. We do retrial, Vick- involves the same crimes on agree for two reasons. ers involved death sentences for two dis- crimes. We did not believe

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, 74 L.Ed.2d 147 103 S.Ct. U.S. testimony is admissibility expert The (1982). put his juror willing If a aside Evid. Ariz.R. of governed by Rule opinions solely upon his and base decision That rule states: evidence, serve. See Clab may he technical, scientific, special- or other If Greenawalt, oume, supra; knowledge the trier of will assist ized 118, 124, 394, 626 P.2d cert. Ariz. the evidence or fact to understand denied, issue, quali- fact a witness determine a (1981). may dire L.Ed.2d 136 voir skill, knowledge, expert by fied rehabilitating a purpose used for the education, may training, experience, responsibili juror him by convincing of his opin- form of an testify thereto Clabourne, ty impartially. supra; to sit ion or otherwise. Clayton, State v. leading case probably what is P.2d subject, Ninth Circuit affirmed evi- preclusion expert ruling trial court’s

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). 660 P.2d at 1212 impeached prior felony to be with a convic- stated, specifically We that “The robbery. tion for bank in rule Arizona will continue to be that in pertinent Our Rules of Evidence state the usual case support we will the trial part: discretionary court’s admissibility on ruling purpose attacking For the of the credi- expert testimony of eyewitness on identifi witness, bility of a evidence that he has cation.” Id. 660 P.2d at 1224. See been convicted a crime shall admit- of McDonald, People also 37 Cal.3d by ted if him elicited from or established Cal.Rptr. (1984) 690 P.2d 709 record, public if the court determines (adopting of the rule usage limited outlined admitting probative that the value of this Note, Chapple); Expert Testimony on effect, outweighs prejudicial its evidence Eyewitness Invading the Identification: (1) punishable the crime was Jury?, Province 26 Ariz.L.Rev. 399 of imprisonment death or of one excess (1984) against (cautioning widespread year he under the law under which was of testimony). use such Under the facts of (2) dishonesty or convicted involved or this the trial court did not abuse its statement, regardless pun- false refusing discretion in to allow the introduc ishment. expert testimony eyewitness tion Evidence, 609(a), peculiar Rule Arizona Rules of Chap- identification. The facts of pie present 17A were not A.R.S. Defendant does assert that the instant case. question guilt hinge prior governed by The his is not solely did not conviction on the testimony eyewitnesses. rule that it was too remote in time to be There nothing Rather, testify the witness would used. he claims that the trial court experi requisite to that was not finding within the common did not make the that the jurors. Owens, ence of the supra, probative using prior State v. convic- value of Ariz. McElyea, outweighed court. State impeachment purposes tion for We P.2d find no any prejudicial effect. of that discretion. Id. abuse making preclude use motion conviction, attor- defendant’s the trial judge do we believe that Neither ney stated: incorrectly. Because defendant re- ruled defense, Rule 609 of the impeachment motion is based on Our upon lied alibi primary Arizona Rules Evidence. important to the vitally State. evidence potential motion is that the thrust of our significance of such evidence similar *12 prior introducing this prejudice in recognized. has been See State situations probative outweigh any will Gillies, 500, 507, conviction 662 P.2d 135 Ariz. impeachment might it have value (1983). We find no error. The that I have main fear is purposes. will this conviction as jury the utilize that Hypnotized Witness b. rather than guilt evidence of substantive Sekulski, operator Stanley tow truck the purpose of utilizing it for the limited pulled the out of the sand at who truck non-truthful- deciding the truthfulness Landing, potential Bonelli was a witness the any testimony that witness of ness hyp- had been against the defendant. He ours.) (Emphasis offers. reasons, prior to other notized trial. For motion, the argument on the court After testify. incompetent found to In- he was and then took the matter under advisement gave testimony the he at defendant’s stead ruled as follows: jury. was the This testi- first trial read to make rulings The I’m to prepared edited, however, mony was first to reflect preclude to that the motion Defendants’ solely prior being the recall to his he had prior the use of the is denied. conviction investigative phase during hypnotized the time spent I have a of re- good deal by using the of the case. This was done viewing arguments this the motion and police made to the pre-hypnotic statements that, opposition the I believe to it. was, FBI. and the The cross-examination rules, prior the under that the use of that however, entirety. read in its Defendant impeach can be conviction used to the maintains, nevertheless, proce- that if the elects to Defendant Defendant tes- right to deprived him the confront dure of tify. him, against and cross-examine a witness Const, VI; amend. XIV. We amend. agree preferred We that agree. do not is complying method for with Rule 609 finding pro specific on-the-record that the First, we note that the use former using prior value of conviction for bative exception testimony recognized is a to the impeachment outweighs danger of un a witness is against hearsay rule whenever Hunter, prejudice. fair State v. 137 Ariz. incompetent testify or is other- declared 234, 237, (App.1983); P.2d 804(b)(1), unavailable. Rule Arizona wise Dixon, 554, 558, Ariz. 622 P.2d Evidence, in- 17A A.R.S. Rules however, Where, (App.1980). it is case, it that the witness agreed stant was reading from a record that clear testify. incompetent in fact against has probative value been balanced Second, although a witness ren specific finding prejudice, need be incompetent testify as to recall dered Ellerson, 125 Ariz. made. See State v. may testify through he hypnosis, induced (1980). appears 609 P.2d It prior hyp demonstrably recalled to facts that the trial in the instant case did nosis: po probative against balance value using risk prejudicial decision We further minimize the tential effect. The [of testimony hypnotized to admit con whether evidence of the witness] hypnotizing a impeachment by requiring purposes viction for that before investigatory pur- potential the sound within discretion of witness for poses, party intending gruesome photographs evidence. to offer into We prehypnotic appropriately recall record only photograph, will one consider how- or, written, vi- tape preferably, recorded ever, photo- as we do not believe deotaped form the substance of the wit- body graph fully of one of clothed knowledge and about ness’ recollection lying near the victims face down the area question preh- the evidence in so gruesome. where it surfaced was ypnotic may recall be established. Such preserved photo be that at court second recordation must so The found the testimony trial the can be graph gruesome agree. be witness and we prehypnotic limited such to the recall. If photograph closeup was a of the torso and taken, steps are not admission decomposed head victims. It of one of the which, error, prehypnotic will recall employer’s him clad in his uniform shows prejudicial, require will reversal. was, photograph a wristwatch. Court, court admitted because the ruled Superior State ex rel. Collins outweighed prej value its probative P.2d that its court grue In the instant the trial though Even it was udicial effect. Vegas reports ruled FBI some, and Las may pro *13 admitted photograph reports Police rec Department met the probative apart from vided it has value requirement. reports ordation Such of merely illustrating the atrociousness the regularly used to summarize witness inter Perea, 352, 142 Ariz. crime. v. State views, case, they and in this to were used 71, P.2d This is true notwith edit reflect testimony Sekulski’s former to identity standing the fact that the neither only prehypnotic his recall. of nor the manner death are victim disputed. Id. imposed requirement

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.” 645 P.2d at 795. Id. (App.1977). 568 P.2d showing We hold that evidence the use of receipt such an alias was relevant and the Second, prejudice there no properly admitted. alleged by the failure to disclose. defendant gun box, empty As to taser we surprise It no that defendant’s came as are unable discern its relevance. Nei testify oppor and there was brother would prejudicial. ther do we find its admission tunity interrogate regarding pro him his Montes, See State Furthermore, posed testimony. the wit (1983). We find P.2d no error. ness himself on the stand stat discredited ing, said “[w]ell, really he never [Patrick] Mistrial e. lightbar. my mak bought he That was Defendant that the contends trial court ** * ing basically. never said up Pat failing grant erred in his motion for a bought light- he’d ever specifically that after adduced a previous- mistrial the State saying Any prej bar. That was me that.” ly at trial. undisclosed statement *14 resulting was fur udice from nondisclosure Testimony pros- at trial was elicited from during cross-examination. ther rectified pur- ecution witnesses that three men circumstances, error, the if Under these alleged the lightbar chased have been any, non-prejudicial. was See State v. Jes the used the commission of crime. Be- sen, 1, 4, 410, (1981) 633 414 130 Ariz. P.2d the description cause the State felt that (trial abuse court did not its discretion men matched one of these defendant’s failing preju no impose sanctions where brother, Poland, he inter- Thad Scott was nondisclosure). dice resulted from evening prior to his sched- viewed the testimony. Allegedly, he uled told investi- Patrick

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. 73 L.Ed.2d 1140 State v. away to take the life of a fellow crea- Vickers, 675 P.2d implied ture. It is when no considerable (1983). We find no error. provocation appears or when the circum- attending killing stances show an malignant

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 132 124 Ariz. at 604 P.2d at In Poland Ariz. at tion.” 285, 800, we set aside the 645 P.2d aggravating

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. 66 L.Ed.2d 251 1067, 796, denied 449 U.S. S.Ct. (1980). We do not believe it has been L.Ed.2d 612. beyond shown a reasonable doubt We do not believe that the evidence so “espe- the murders were committed in an produced far in this case shows that the heinous, cially depraved cruel or man- interpret murders were cruel. We have ner.” “disposed pain ed “cruel” as to inflict retrial, again At the State failed to show wanton, esp. in a insensate or vindicative lacking what we found in Poland I: suffer- manner: Lujan, sadistic.” v. State ing by the victims and the circumstances 629, (1979), Ariz. 604 P.2d surrounding their deaths. The State did quoting Webster’s Third New Interna not show the victims were conscious at the Dictionary. tional There was no evi finding cruelty A time of death. cannot suffering by guards. dence of prove stand where the has failed to State autopsy they revealed no evidence that beyond a reasonable doubt that the victims injured had been bound being or were conscious at the time of death. State water,

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. 639 P.2d 1020 State nous, depraved cruel or manner.” Bishop, 127 Ariz. 622 P.2d 478 (1980); Knapp, Ariz. has, however, proven The State be (1977), denied, 562 P.2d 704 cert. 435 U.S. yond a reasonable doubt defendant 55 L.Ed.2d 500 the offense as “committed consideration expectation receipt, for the or support

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. 675 P.2d 1353 use viction the or threat vio- sentencing pecuni- the incorrectly court used the lence and that the offense was for ag ary gain together mitigat- exemplary defendant’s life as an with insufficient factor). believe, brings gravating ing how circumstances this court to the We do ever, the that the crime is the norm that court used defendant’s close conclusion above family Rather, ap degree in ties this manner. it of first murders and that de- pears degree norm court found this be a fendant above the of first mitigating factor murderers. “sufficiently but not sub leniency.” stantial call State for pur- We have reviewed the entire record Gretzler, 1, 42, 54, 13, 135 Ariz. 659 P.2d § suant A.R.S. 13-4035 and have found denied, 971, 2444, cert. 461 U.S. finding no reversible The error. (1983). 1327 L.Ed.2d We find no error. “especially in murders committed heinous, depraved cruel or manner” is set We further find that de neither aside, findings but ag- as to the other age, twenty-seven fendant’s at the time gravating circumstances are affirmed. No Clark, offenses, State v. supra; nor mitigating sufficiently circumstances sub- prisoner,

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. 81 L.Ed.2d 164 In Ari- upon aggravating soley this not be based zona, therefore, if a trial “acquits” court heinous, [cruel, or de- circumstance defendant on the ultimate issue in the praved] there was insufficient because sentencing proceeding death —whether holding support it. This was evidence to impose penalty the death if this Court —or penalty ‘ac- to a death tantamount penalty reverses a death “conviction” be- quittal’.” evidence, cause of insufficient the double characterizing Though perhaps correctly jeopardy prohibits rule retrial of the death I, majority our fails holding in Poland penalty issue. Arizona v. Rumsey, supra; to see in Poland I is disposition that the Bullington Missouri, supra. unacceptable jeopar- double under current Our decision in Poland I surely was dy rules, retroactively to this apply which reversal of defendant’s death penalty “con- case. At the time of I it was Poland viction” for insufficient evidence constitut- defendant, appropriate to resentence de- ing acquittal a final charge. of that In spite this Court’s nullification of the sole Poland I the trial court aggra- found one aggravating against him. circumstance It vating upon circumstance which it based however, appropriate, was only because § penalty: death 13-454(E)(6) A.R.S. sentencing procedure Arizona’s death § (now 13-703(F)(6)), that defendant com- separate not then considered a trial for mitted the offense in especially heinous, jeopardy purposes. double cruel, depraved manner. Because of a law, however, mistake of the trial court Supreme The United States Court has failed to find the pecuniary gain aggravat- law, changed since and now death sen- § ing circumstance, 454(E)(5) A.R.S. 13— tencing procedures separate trials for § (now 13-703(F)(5)). appeal, On this jeopardy purposes. double Arizona v. Court thoroughly analyzed the aggra- lone Missouri, Rumsey, supra; Bullington v. vating circumstance supporting defend- Thus, supra. in the I Poland death sen- ant’s penalty, death and we found it non- tencing guilty “trial” defendant was found existent because of insufficient evidence. charge against him—whether to im- As a sense, matter of then, common when pose penalty. sup- the death One basis this Court struck down aggravat- the sole ported Court, that “conviction”. This how- ing factor by found the trial justi- court to ever, found that sole basis non-existent be- fy defendant’s death penalty because of Thus, just cause of insufficient evidence. evidence, insufficient we necessarily re- trial, type of when any other this as versed defendant’s death penalty “convic- Court finds the sole basis for a conviction tion” for lack of sufficient evidence. evidence, unsupported by the we necessar- No other view of our Poland I decision is ily reverse that conviction for lack of suffi- possible. As this Court does not write Furthermore, cient just evidence. as in non-binding advisory opinions, the death trial, any type other such a reversal is a sentence review in Poland I cannot be acquittal jeopardy pur- final for double Further, viewed as such. even our dis- States, poses. supra; Burks v. United cussion in Poland I could somehow be con- Massey, 437 U.S. Greene S.Ct. dicta, strued as I always had believed that (1978)(applying 57 L.Ed.2d 15 Burks dicta was binding upon parties in states). majority’s explanation to the case in appears. which the dicta It was appellate I would allow courts to Poland certainly binding in the instant case. reverse convictions for insufficient evi- however, The majority, explains dence remand to the trial court our deci- and then by relying sion in upon Poland I the law as with to convict the defendant instructions — supra, Rumsey, U.S. at charge on another basis. Such Arizona of the same 2310-2311, ---, at correct. a result cannot be at As this Court effec- L.Ed.2d 171-172. Furthermore, Rumsey, settled tively “acquitted” the death defendant of finding pecuni- court’s in not error I, penalty reimposition in Poland gain aggravating circumstance at the ary improper, despite the penalty way justifies sen- first trial in no a second failing to find the trial court’s error tencing proceeding. “acquitting” gain aggravating pecuniary circumstance. penalty, the trial of the death defendant majority, that it maintains legal er- judge Rumsey made the exact because, has reached the correct conclusion ror the trial made the instant case. Bullington Rumsey, unlike defendant Nevertheless, court and the United in this case was sentenced to death Supreme held that the trial States Court *21 ignore principle first trial.1 If I could the “acquittal” was final for court’s erroneous States, v. su- established Burks United by purposes. stated jeopardy double As Massey, might I pra, supra, and v. Greene high Rumsey: the court in majority’s argument. agree with the In law, however, on an error of “Reliance Greene, however, and Burks United jeopardy ef- change does not double Supreme appel- an States Court held that to an judgment fects of a that amounts insufficient evidence has late reversal for acquittal the merits. fact that on ‘[T]he exactly jeopardy double effect as same acquittal may result from “the erroneous acquittal. The rationale jury a Burks is rulings interpre- or evidentiary erroneous logical: * * legal governing principles” tations error, short, “In reversal for trial as accuracy of affects the that determina- distinguished evidentiary from insuffici- tion, but it does not alter its essential to ency, constitute a decision the does not Scott, character.’ United States v. 437 failed to government has effect that 82, 98, U.S. 57 such, noth- implies As it prove its case. (1978) Id., 106, L.Ed.2d (quoting 65 at 98 guilt or innocence ing respect with BRENNAN, J., S.Ct. at 2201 dissent- Rather, it is a determi- of the defendant. ing). Thus, hold that convict- this court’s cases nation that a defendant has been process acquittal an which is through judicial on merits bars retrial ed a respect, legal fundamental even based on error.” defective in some sentencing deci- support reasoning majority example, the Arizona ri. For 1. In of this cites (9th Cardwell, jury, Knapp 667 F.2d 1264-65 than sion is rather made denied, Cir.), cert. U.S. S.Ct. procedure presenting 459 103 the evidence and the case, however, (1982). L.Ed.2d 74 inapplicable 621 That is dif- These much less trial-like. in Arizona is Knapp, instant In to the case. holding weight that ferences our lend brought row class of Arizona death challenging inmates suit implied acquittals have been case no this constitutionality of the Arizona shown to exist.” that, argued even if death sentence statute F.2d at constitutional, application its to them violated reasoning inapplicable to this Knapp is post jeopardy ex laws and the double facto majority does important an reason the case for clause. Knapp acknowledge: the death sentences not Rejecting argument, Ninth this Circuit appeal for insufficient never reversed on were Appeals Court stated: case sentence in this evidence. The death present clearly distinguishable "The case is appeal for evidence reversed on insufficient First, Bullington. appellants in from this acquittal rendering it identical to a final thus Bullington, sentenced unlike purposes. jeopardy Burks v. See for double original sentencing. at There ex- death their States, supra. United 'acquittal’ implied ists no in the case. See addition, United States this Court and the Bullington, S.Ct. Knapp expressly rejected Supreme Court (Justice Powell, dissenting). L.Ed.2d 270 sentencing proceeding analysis that our Rumsey, supra. like trial. Arizona addition, sentencing proce- "In the Arizona P.2d Rumsey, 136 Ariz. State v. dure, Watson, and after bears less both before (1983). than resemblance to a trial did that Missou- receipt acquittal same e.g., rejection incorrect or of evi- as the factfinder’s de- dence, instructions, prosecu- penalty “charge.” fendant the death incorrect on occurs, Thus, jeopardy retry When it double torial misconduct. this violated charge. strong accused has a obtain- defendant See interest Jones (5th Cir.1984) (De- guilt fair F.2d ing readjudication Thigpen, of his free error, just society from fendant to death at the trial maintains a sentenced court, appellate insuffi- insuring guilty valid concern for but court found Note, punished. Jeopar- support cient See Double evidence sentence. Citing Bullington, Rumsey, dy: Appellate A New Rever- Burks and Trial After Greene, Evidence, pre- jeopardy the court held double sal 31 U.Chi. for Insufficient again subjecting vented from state defend- L.Rev. sentencing hearing ant to death in second “The same when a cannot said de- trial.)2 majority’s basis for distin- fendant’s conviction has been overturned guishing case Bullington from trial, proof due to failure of in which therefore, Rumsey, is erroneous it because prosecution complain case the cannot only concentrates on the court decision prejudice, given for it has one fair been ignoring jeopar- while the important double opportunity proof to offer whatever it dy effects of our decision in Poland I. Moreover, ap- could assemble. such pellate govern- reversal means that the Finally, will I address what I believe to lacking case it ment’s was so should majority opin- be an unstated basis *22 not have even been submitted the is, I, in ion. That or- Poland this Court jury. necessarily Since we afford abso- trial, including dered an entire new both finality jury’s acquit- lute to a verdict guilt the phase or innocence and the death tal—no matter how erroneous its deci- Thus, phase. sentencing phases as both sion—it is difficult to how conceive socie- trial fundamentally are connected each ty any greater retrying has interest in a other, convicted, the defendant should be when, review, is defendant it decided subject totally sentencing to a new in the as matter jury a of law could not Though position second trial. I believe this properly have returned a verdict of reasonable, entirely is the law as it now in guilty.” (emphasis original) rejects thinking. stands this States, supra, Burks United U.S. at First, Bullington established that death 15-16, 2149-2150, 98 S.Ct. at 57 L.Ed.2d at sentencing proceedings separate wholly 12-13. guilt phase from the or innocence for dou- above, explained purposes. As in ble jeopardy our decision Po- In Bullington nothing appellate land I was but an rever- capital defendant was convicted of murder penalty imprisonment. sal of defendant’s death “convic- and sentenced to life guilt tion” for lack of sufficient As granted evidence. court a new trial on the phase in in or established Burks and reaffirmed innocence but refused to allow the exactly Bullington, this reversal is state a to attempt second chance to sen- Though Thigpen, slightly supra, agreed 2. Jones v. is The Jones court with defendant "that case, distinguishable from instant distin- evidentiary sufficiency, a Enmund's is rule of Jones, guishing factor makes no difference. produce and that because the failed appellant's death reversed sentence be- personal culpability sufficient evidence of at the supporting cause of evidence insufficient Jeopardy first is trial it barred Double aggravating factors but because insufficient evi- Thig- Clause from second chance." Jones v. killed, supported finding dence that Jones Thus, pen, supra just 814. as I believe should attempted intended to kill or to kill the victim. jury be the in "if result this under Florida, See Enmund v. 3368, Bullington Rumsey] ap- under an [the or Thus, 73 L.Ed.2d it was pellate prosecu- court under Burks finds the insufficiency spared evidence that Enmund support penalty tion’s in evidence the death Jones' life. insufficient, again the defendant cannot because, insignificant This difference is like possible made to face death sentence.” Id. at case, Jones’key was the state’s insuffi- issue penalty. supporting evidence the death cient Affirming tence the defendant to death. support evidence is insufficient to court, Supreme assessed, the trial the United penalty States death reviewing court, sentencing Court held that the first death deciding proper before on the dis- procedure jeopardy- was a trial for double position appeal, must determine if purposes acquittal and that the the defend- guilt stage is free from reversible prevented ant received in that trial a retrial guilt stage error. If the is not free of in on the death sentence the second murder error, such the cause must be reversed Thus, appellate trial. whether or not an error, for such upon any and retrial the grants guilt court a new trial on the penalty death would not be an available phase, acquittal innocence a final in the penalty.” sentencing phase prevents death a retrial State, (Tex. Wallace v. 618 S.W.2d of defendant on the death sentence issue. Crim.App.1981). shown, then, previously As our reversal Today, majority holds that of defendant’s sentence Poland I a death sentence “conviction” reversed on issue, and, equalled acquittal final on that appeal for insufficient evidence invokes no shows, Bullington acquittal that final jeopardy protections. holding double This prevents the first trial retrial of the death contrary is to the law established in Arizo- sentence the second trial. Rumsey, supra; na Bullington v. Mis- souri, urge supra; States, I way The result this case is in no Burks v. United su- simply I, or unheard of. It pra; bizarre a mat- and v. Massey, supra Greene therefore, logically applying existing ter of Accordingly, law. Oth- dissent. I would er courts have reached the exact result I reduce defendant’s impri- sentence to life argue for. In a case decided before Bull- sonment possibility parole without ington, Appeals the Court of Criminal twenty-five years. guilt

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). 600 S.W.2d 288 remanding court, In the case to the trial court, appeals citing Burks

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 698 P.2d 207 subsequent a case to Bullington, Arizona, Appellee, STATE of presiding judge of the Texas Court Appeals gave analysis Criminal an able POLAND, Appellant. Michael Kent confronting today: the situation us alty, alty. souri, support v. Mis- (Tex.Cr.App.1980); Bullington “The evidence Brasfield ^[451] the assessment of the death is no U.S. longer [430], being State, 101 S.Ct. an available 600 S.W.2d 288 insufficient pen- pen- Supreme March No. 4969-2. In Banc. Court Arizona, (1981); L.Ed.2d 1270 Burks v. United

States, 437 U.S. 98 S.Ct. (1978);

L.Ed.2d 1 Massey, Greene v. 57 L.Ed.2d 15 capital In a murder case where