State v. Tison

FELDMAN, Justice,

concurring in part, dissenting in part.

I concur in all portions of the opinion except that dealing with the “Enmund Issue” (at 456-457). I dissent from that portion of the opinion because the majority’s holding is contrary to Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368 (1982), because it does not follow our own rules and authority and because it usurps the function of the trial court.

Enmund teaches that the death penalty may not be imposed on one who neither killed, attempted to kill nor intended a killing. Id. at 797, 102 S.Ct. at 3376-77. Three years ago this court held that the record in this case did not support the conclusions that are now necessary to comply with Enmund. In affirming the sentence, we stated:

That they [the Tison brothers] did not specifically intend that the [victims] die, that they did not plot in advance that these homicides would take place, or that they did not actually pull the triggers on the guns which inflicted the fatal wounds is of little significance.

State v. Tison [Ricky], 129 Ariz. 526, 545, 633 P.2d 335, 354 (1981).

Since that initial review no further evidence has been presented. Defendant commenced proceedings for post-conviction relief (Rule 32, Ariz.R.Crim.P., 17 A.R.S.), and the trial court summarily denied such relief. The case is now before us for review of that summary denial. Thus, the record before us today is the same that was before us in 1981 when we affirmed State v. Tison [Ricky], supra, and State v. Tison [Raymond], 129 Ariz. 546, 633 P.2d 355 (1981).

Enmund was decided three years after the imposition of sentence and nine months after our affirmance of both Tison cases. The only question before us today is whether the intervening decision in Enmund permits imposition of the death sentence in the absence of an evidentiary hearing and findings on the issues which Enmund raises. Does the record today support what it could not support in 1981 — that defendants either killed, attempted to kill or intended that the victims be killed? Ignoring its statements in 1981, the majority answers affirmatively, holding that the Enmund test was met. It acknowledges that “the evidence does not show that petitioner killed or attempted to kill,” but holds that “[t]he evidence does demonstrate beyond a reasonable doubt, however, that petitioner intended to kill.” (at 456.)

Even if we ignore the previous contrary conclusion, today’s holding is remarkable because there is no direct evidence that either of the brothers intended to kill, actually participated in the killing or was aware that lethal force would be used against the kidnap victims. Further, the trial judge made no finding on any of the Enmund factors. How, then, can this court hold that the Enmund test is satisfied? That answer, too, is contained in the majority opinion: “we conclude,” states the majority, “that [defendant] intended to kill.” (At 456, emphasis supplied.) I had thought that such inferences were for the fact finder, not the appellate court, especially one which had previously noted its inability to make such an inference.

The trial judge not only failed to make the necessary findings but, more importantly, conducted no inquiry on the subject. Because the sentencing hearing was held before Enmund was decided, the issue of defendant’s individual mens rea with respect to the killing was not addressed; instead, the trial judge confined himself to making the findings required under the law as it then existed. The defendants had been convicted on a general verdict of guilt following instructions which included both premeditated murder and felony murder. The general verdict, of course, did not indicate which theory the jury adopted. It is clear, however, that the trial judge was aware that the record supported only a conviction under the felony murder rule, for he found as a mitigating circumstance that Ricky had been “convicted of four murders under the felony murder instructions.” (R.T. 64(a), 3/29/79.) Under the law as it then existed, the judge was concerned (as was the trial judge in Enmund, 458 U.S. at 805-06, 102 S.Ct. at 3381, O’Connor, J., dissenting) with the question of defendant’s participation in the underlying felony. The defendant’s legal accountability for the conduct of another was a mitigating factor to be considered by the judge before imposition of the death penalty if the defendant’s “participation was relatively minor.” A.R.S. 13-703(G)(3). Thus, instead of the findings now required by Enmund, the trial judge found only the following:

... Even accepting as true [defendants’] statements of who actually fired the fatal shots, it cannot be said that their participation was relatively minor. By their own statements their participation up to the moment of the firing of the fatal shots was substantially the same as that of Randy Greenawalt and Gary Ti-son. At the moment of the firing their participation may not have equalled that of Randy Greenawalt and Gary Tison, but their standing and watching while armed themselves cannot be characterized as relatively minor participation.

(Special Verdict at 5.) This, of course, is the same finding made by the trial judge in Enmund, who “concluded” that the defendant “was an accomplice to the capital felony and that his participation had not been ‘relatively minor,’ but had been major ....” Enmund, 458 U.S. at 806, 102 S.Ct. at 3381 (O’Connor, J., dissenting). Such a finding is not sufficient to meet the Enmund test; Justice O’Connor has instructed with respect to the minimum Enmund requires:

Thus, in deciding whether or not to impose capital punishment on a felony murderer, a sentencer must consider any relevant evidence or arguments that the death penalty is inappropriate for a particular defendant because of his relative lack of mens rea and his peripheral participation in the murder.

Id. at 828, 102 S.Ct. at 3393 (emphasis supplied).

Under the plurality view expressed by Justice White, the requirement may be more stringent. Whatever the exact standard may be, it has not been met in this case. In the absence of an evidentiary hearing on the Enmund issues, we have only the majority’s ultimate inference of defendant’s intent. What is worse, the majority has drawn this inference before defendant has been permitted to submit evidence on the issue. It is wrong for .a reviewing court to draw such an inference; because it is only one of multiple competing inferences, it should be left to the finder of fact. The error is compounded when the reviewing court draws the inference before receiving all the evidence. Because the sentencing hearing was not directed to the issue of mens rea and participation in the murder, and because defendant’s application for relief under Rule 32 was summarily dismissed without an evidentiary hearing, to this date defendant has not been given a specific opportunity to submit evidence on the narrow issue which, after Enmund, became determinative.

To further compound the error, in drawing its inference the majority deals only with peripheral conclusions, and ignores crucial facts. It decides that defendant’s “participation up to the moment of the firing of the fatal shots was substantially the same as that of Gary Tison and Greenawalt.” (At 456, emphasis supplied.) It points out that defendant “actively participated in the events leading to death.” {Id., emphasis supplied.) This is correct; no doubt defendant intentionally engaged in a dangerous criminal enterprise involving the use of deadly weapons. But no matter how the facts here are marshaled, we are faced with the Enmund rule and the facts which generated it. Enmund planned the armed robbery, transported two persons to the site of the crime, sent them into the house to commit the robbery knowing that they were armed, waited for them and drove the get-away car. With knowledge that they had killed, Enmund helped them flee, dispose of the weapons and attempt to evade apprehension. The facts in the instant case establish no more participation in the murders than was proved in Enmund. Here, as in Enmund, the inquiry is not to be focused on defendant’s participation in the underlying felony which led to conviction under the felony murder rule, but on defendant’s intentional or knowing participation in the killing, a subject on which the trial judge made no finding, but only stated that defendant’s participation in the killing “may not have equalled” that of the others.

The majority makes much of the fact that defendant was at the “site,” watched the killings and did nothing to stop them (At 456). It neglects to mention that, as in Enmund (458 U.S. at 784, 102 S.Ct. at 3370), all of this took place from some distance. The only evidence on the issue indicates that before the killings both of the Tison brothers had been sent back to the victims’ car by their father and were some distance away from the actual place at which the killings occurred. (Statements of Ricky Tison, 1/26/79 at 13 and 2/1/79 at 35; Statements of Raymond Ti-son, 1/26/79 at 18, and 2/1/79 at 42.) There is neither a finding from the trial court nor evidence to establish that defendant was in a position to prevent the killing, if he had wanted to. There is evidence that although defendant was “worried” about his father’s intentions toward the kidnap victims, he did not know what was going to happen until, from the other car some distance away, he and his brother presumably heard the first shot, turned and saw the killings. (Statements of Ricky Tison, 1/26/79 at 9 and 13; Statement of Raymond Tison, 1/26/79 at 18.)

The proper course for us is no mystery; we have recognized the pertinent legal principles in the recent past. In State v. Emery, 141 Ariz. 549, 688 P.2d 175 (1984), we acknowledged that the “determination required by Enmund ... ought to be made by the trial court as part of its duty to impose sentence ____” In Emery we reduced the sentence to life because the record made it clear that the trial court could not make such a finding even on remand. In State v. McDaniel, 136 Ariz. 188, 665 P.2d 70 (1983) we invoked Enmund to require specific findings whenever a defendant may have been convicted of capital murder pursuant to a felony murder instruction. We instructed sentencing judges that they must find beyond a reasonable doubt that the defendant killed, attempted to kill or intended the death of the victim before a sentence of death could be imposed. Id. at 199, 665 P.2d at 81. We did not indicate that where the trial judge failed to do so, we could cure the defect by a de novo review of the record. In State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), we affirmed a sentence imposed pre-Enmund but applied the Enmund criteria and correctly found that defendant’s “participation in the murder was substantial and intentional.” Id. at 515, 662 P.2d at 1022. However, we based the affirmance upon a finding made by the trial judge that the victim’s death was “ ‘the result that [Gillies] wished to have occurred.’ ” Id. at 514, 662 P.2d at 1021. In Gillies we also discussed the Florida cases on which the majority relies today,¹ pointing out that, as with the Florida defendants, Gillies had participated with his co-defendant in both the underlying felony and the actual killing. In such cases, where the participation of each of the defendants is so similar that the only question concerns which defendant struck the final blow, the Enmund standard is satisfied. The weight of authority indicates, however, that where the defendant’s participation is only in the underlying felony, and where he does not intend that the victim be killed and does not actually participate in the killing, the death penalty may not be imposed. State v. Emery, supra; People v. Jones, 94 Ill.2d 275, 68 Ill.Dec. 903, 447 N.E.2d 161 (1982); People v. Tiller, 94 Ill.2d 303, 68 Ill.Dec. 916, 447 N.E.2d 174 (1982), cert. denied, 461 U.S. 944, 103 S.Ct. 2121, 77 L.Ed.2d 1302 (1983). This, of course, is the ultimate principle for which Enmund stands.

The state argues,² and the majority flirts with, the question of foreseeability. Undoubtedly Tison should have foreseen the possibility that there might be a killing in the course of the prison break or the flight which followed. Thus, the majority points out (At 456) that petitioner “could anticipate the use of lethal force during this attempt to flee confinement.” If this is an attempt to apply the tort doctrine of foreseeability to capital punishment cases in order to satisfy the Enmund criteria, it must be doomed to failure. Of course, the foreseeable “possibility” that death may occur may grow to a point where, as Justice White indicates, death may be imposed because the defendant “contemplated that life would be taken.” Enmund, 458 U.S. at 801, 102 S.Ct. at 3379. The United States Supreme Court has not yet had occasion to draw that line and explain the degree of “contemplation” required to impose death, nor have we attempted to do so. No line can be drawn in this ease because there is neither evidence nor a finding upon which to base consideration of such an issue. The trial judge found only as follows:

4. Each defendant could have reasonably foreseen that his conduct in the course of the commission of the offense for which he was convicted would cause or create a grave risk of causing death to another person.

That finding is undoubtedly correct and probably is intended to reflect the aggravating circumstance described in A.R.S. § 13-703(F)(3). It would undoubtedly have been correct if applied to Mr. Enmund, who sent two armed robbers into a house to commit a robbery and certainly could have foreseen that they might be interrupted during the course of the crime and might kill to save their own lives or to escape. But Enmund teaches us that tort forseeability is not the test. The evidence in this case regarding the reason for the killing of the kidnap victims has not yet been presented, so we cannot tell whether a “bright line” can be drawn between tort foreseeability and “contemplation.” All we know here is that the only direct evidence of what the brothers expected when they began the criminal enterprise is the following statement made by Raymond, before being sentenced:

Well, I just think you should know when we first came into this we had an agreement with my dad that nobody would get hurt because we [the brothers] wanted no one hurt. And when this [killing of the kidnap victims] came about we were not expecting it. And it took us by surprise as much as it took the family [the victims] by surprise because we were not expecting this to happen. And I feel bad about it happening. I wish we could [have done] something to stop it, but by the time it happened it was too late to stop it. And it’s just something we are going to live with the rest of our lives. It will always be there.

(Aggravation Hearing and Sentencing Transcript, 3/14/79, at 159.)

This, indeed, is meager evidentiary support for this court’s finding that defendant intended to kill. The trial judge should impose sentence after an evidentiary hearing on the issue of mens rea. The procedure to handle cases such as this is set forth in Rule 32, Ariz. R. Crim. P., 17 A.R.S., which provides:

32.1 ... any person who has been ... sentenced ... may ... institute a proceeding to secure appropriate relief on the ground ... that:

g. There has been a significant change in the law applied in the process which led to ... sentence,

.•k ¡k sk * * sk

32.6(c) The [trial] court shall review the [Rule 32] petition____ If ... it determines that no material issue of fact or law exists which would entitle petitioner to relief under this rule ..., it may order the petition dismissed .... Otherwise, the court shall direct that the proceeding continue and set a hearing____

Enmund, has changed the law since sentencing in this case. Enmund creates an issue as to defendant’s mens rea with respect to the murder, not just the underlying felony. There has been no hearing on that issue. There has been no trial court decision on that issue. We are a reviewing court, not a fact finder. Without a hearing and a finding by the trial court, there is nothing for us to review.

I would obey the dictate of Enmund and require an “individualized consideration” of mens rea or intent to kill as a constitutional requirement in imposing the death sentence. 458 U.S. at 798, 102 S.Ct. at 3377. I would follow the rules we have written and procedures we have recognized in other cases to resolve the factual issue before addressing the constitutional issue. Once there has been a hearing, the trial judge can make the findings required by Enmund. Then and only then can we review the record. We should remand for a new sentencing hearing.

1 . Hall v. State, 420 So.2d 872 (Fla.1982) and Ruffin v. State, 420 So.2d 591 (Fla.1982).

2 . At oral argument, however, the state conceded that remand for a new sentencing hearing was the best course to follow. In answer to the court’s question

Wouldn’t the state be better off with specific findings one way or the other ... ?

the state’s attorney responded, with commendable candor:

I think so, and I think, I think it’s better for all parties concerned that there be specific findings and in this particular situation I think the trial court ought to make those findings to give this court and perhaps other courts a record from which to operate.