State v. West, 176 Ariz. 432, 862 P.2d 192
(Ariz. 1993). (Direct Appeal)
Defendant was convicted before the Superior Court,
Pima County, No. CR-21715, Thomas Meehan, J., of first-degree felony-murder,
second-degree burglary, and theft, and was sentenced to death for the
murder. On automatic appeal, the Supreme Court, Moeller, V.C.J., held
that: (1) evidence that victim had threatened suicide was properly
excluded as irrelevant, as evidence negated any possibility that victim
killed himself; (2) photograph of victim was relevant and admissible to
corroborate testimony of witnesses, and to show that death resulted from
underlying felony; (3) there was no obligation to instruct jury on
premeditated murder theory which was withdrawn by the state; and (4)
aggravating factors outweighed mitigating factors, and sentence of death
was appropriate. Affirmed.
MOELLER, Vice Chief Justice.
Thomas Paul West (defendant) was convicted by a jury
of first degree felony murder, second degree burglary, and theft. He was
sentenced to death for murder and to concurrent 10 year terms for
burglary and theft, to be served “consecutively” to the death sentence.
This is an automatic appeal pursuant to A.R.S. § 13-4031 and
Ariz.R.Crim.P. 26.15 and 31.2(b). We have jurisdiction pursuant to Ariz.
Const. art. 6, § 5(3) and A.R.S. §§ 13-4031, 13-4033.
Defendant came to Phoenix from Illinois in June of
1987. He first stayed with his friends Scott and Lisa at their Glendale
apartment and later went to Tucson to stay with Polly, another friend.
Polly worked at a Circle K in Tucson and was acquainted with the victim,
who was a regular customer. The victim told Polly's boss that he had
several items for sale. Polly was interested in purchasing a VCR and, on
June 26, 1987, using a map that the victim had given her boss, she and
defendant went to the victim's home. The victim had a large amount of
electronic equipment for sale. Polly and defendant spent more than an
hour at victim's home viewing the items for sale and talking with the
victim. Polly bought a VCR, a video camera, and a typewriter.
Two-and-a-half weeks later, defendant showed up at
Scott and Lisa's Glendale apartment. Lisa told defendant to come back
later because Scott was sleeping. Defendant left and went to another
apartment in the same complex to see Richard, another friend. Several
hours later the two left for Tucson. Defendant did not own a car, but he
was driving a station wagon that he told Richard he had borrowed from
friends in Tucson.
Richard accompanied defendant to Tucson where
defendant stopped to make a phone call, after which, according to
Richard, defendant was “really upset.” Defendant drove a few more blocks
before making another phone call. After this call, he calmed down.
Defendant and Richard then drove to a secluded desert area and met Polly.
Defendant spoke to Polly for several minutes, telling her that “he was
in trouble and he was going to be out of town for a while.” Defendant
then got back in the car and drove approximately 300 to 400 yards into
Hidden beneath a tree was a cache of electronic
equipment, including VCRs, videocassettes, and stereo equipment. Richard
helped defendant load many of these items into the station wagon, but
they left behind several items that would not fit. Defendant and Richard
then returned to Phoenix and stored the equipment in Scott and Lisa's
On the return trip to Phoenix, defendant told Richard
that he had beaten “some guy” up and had been covered with blood. In
Phoenix, defendant told Scott that he had “ripped some old man off.”
Later, defendant told Scott that he wanted to “dump the car” because “it
was the old man's that he had robbed.” Scott and defendant drove
separately out to the far west side of Phoenix, where defendant told him
that “he was going to go out in the field and either just dump it or
burn it.” Defendant asked Scott if he had a gas can. Scott did not.
Defendant drove off in the station wagon and returned a short time later
on foot. Scott saw a big cloud of smoke, and defendant told him that he
had burned the car.
On Tuesday afternoon, July 14, Polly called Scott and
Lisa's apartment looking for defendant. Lisa went to Richard's apartment
to tell defendant about the call. She there heard defendant tell Richard
and another person that he was “trying to get rid of some merchandise.”
Lisa asked defendant if he was in trouble, and he told her “not to worry
about it.” Later defendant told Scott that “he had beat this old man up
and tied his arms and legs behind his back and threw him in the closet
and then he ripped his stuff off and the car.” Defendant had scratches
on his hands and told Scott that “he got them beating up the old man.”
The next day, while he was in her apartment, Lisa
heard defendant say that he “had beat the fuck out of this old man and [had]
thrown him in a closet.” Lisa asked defendant, “[Y]ou did what?” to
which defendant replied, “[T]his isn't for your ears, don't worry about
Later, Lisa's friend Patty called, and Lisa told her
what she had heard about defendant's activities. About 45 minutes later,
Lisa went to Richard's apartment and confronted defendant. She told him
that she had a “pretty good idea of what had happened” and that, if the
victim could be helped, he should be. Lisa told defendant that “he
should call Silent Witness or somebody that would go check to see if
this man was alive and that he probably had family that loved him.”
Defendant replied, “[N]o, this man had nobody,” and that Lisa “would
have to live with it.”
On Thursday, July 16, defendant asked Scott to make
plane reservations for his return to Illinois. Defendant packed the
equipment that had not been disposed of into boxes and, on Thursday
night, left Phoenix with the items. In the meantime, Patty had contacted
the Pima County Sheriff's Department. Detective Petropoulos spoke to
Patty several times during the morning of Friday, July 17 and, using the
information that she provided, contacted Polly. While interviewing Polly,
the detective noticed the map to the victim's house. After obtaining the
map from Polly, the detective called the number written on the map.
Receiving no response, he went to the victim's home to investigate.
Detective Petropoulos entered the trailer and found
the victim's decomposing body in the north bedroom. The victim's hands
and feet were tied behind his back with a vacuum cleaner cord and a lamp
wire. The medical examiner later testified that the victim had been
beaten severely about the face with a blunt instrument and that he
probably had bled to death within 45 minutes to an hour. Although a
knife was found in the trailer, the medical examiner found no evidence
that the victim had been stabbed. Because of the body's decomposed
condition, the medical examiner could only estimate the time of death.
In his opinion, the victim had been dead between three and seven days,
placing the killing between Saturday, July 11 and Wednesday, July 15.
Some time after 3:00 a.m. on Saturday, July 18,
Sergeant Mark Wilkans of the Hodgkins, Illinois, police department
stopped a vehicle for speeding. Defendant was one of two passengers in
the car. After arresting the driver for driving under the influence,
Wilkans asked defendant for identification. Having none, defendant gave
Wilkans his name and birth date. Wilkans radioed this information to his
base and was informed that defendant was wanted in Arizona for murder.
Wilkans arrested defendant. A search of the car at the Hodgkins police
station yielded boxes that defendant had brought from Arizona. The boxes
were inventoried and contained electronic equipment later identified as
having been taken from the victim. On Monday, July 20, Detective
Petropoulos arrived in Illinois from Tucson and took custody of
defendant and the stolen property. He sealed the boxes and mailed them
to Tucson where, after obtaining a warrant, he searched them.
Defendant raises 10 trial issues, 11 sentencing
issues, and one issue relating to appellate procedure. Many of the
issues have numerous subparts. FN1 The issue relating to appellate
FN1. Defendant lists as two other issues “independent
review” and “proportionality reviews.” We automatically conduct an
independent review of the record, see State v. Schad, 129 Ariz. 557,
573, 633 P.2d 366, 382 (1981), cert. denied, 455 U.S. 983, 102 S.Ct.
1492, 71 L.Ed.2d 693 (1982), and we do not conduct proportionality
reviews, see State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992), cert.
denied, 509 U.S. 912, 113 S.Ct. 3017, 125 L.Ed.2d 707 (1993). We
therefore do not address these two items as separate issues.
1. Whether our order limiting defendant's opening
brief to 150 pages violated his due process right to effective
assistance of counsel.
The trial issues are: 1. Whether the trial court
erred by “death qualifying” the jury; 2. Whether the trial court
improperly admitted evidence seized in Illinois as a result of a
warrantless automobile inventory search; 3. Whether the trial court
erred by precluding defendant from raising as a defense that the victim
had suicidal tendencies and had arranged his own death; 4. Whether the
trial court erred by admitting a gruesome photograph of the victim; 5.
Whether defendant was deprived of his right to be informed of the nature
of the charges against him; 6. Whether the trial court erred in
instructing the jury; 7. Whether Arizona's felony murder statute is
unconstitutional; 8. Whether conduct of the judge during trial denied
defendant a fair trial; 9. Whether the prosecutor engaged in misconduct
during closing argument; and 10. Whether the trial court erred by
failing to provide the defense with the juror's names and addresses
after the trial.
The sentencing issues are: 1. Whether the State
failed to prove beyond a reasonable doubt that defendant previously had
been convicted of a violent felony within the meaning of A.R.S. §
13-703(F)(2); 2. Whether the State failed to prove beyond a reasonable
doubt that the killing was especially cruel or heinous. 3. Whether the
application of A.R.S. § 13-703(F)(5) (expectation of pecuniary gain as
aggravating circumstance) to this case is unconstitutional and, if not,
whether the State nonetheless failed to prove beyond a reasonable doubt
that defendant killed in expectation of pecuniary gain; 4. Whether the
trial court erred by failing to find additional mitigating circumstances;
5. Whether the trial court gave insufficient weight to the two
mitigating circumstances that it did find; 6. Whether imposing the death
penalty for felony murder is unconstitutional, and whether the trial
court erred by failing to conduct an Enmund/Tison hearing; 7. Whether
defendant received adequate notice of the aggravating circumstances that
would be used to support the death penalty; 8. Whether defendant's
request to voir dire the trial judge was improperly denied; 9. Whether
the prosecutor engaged in misconduct during sentencing; 10. Whether the
trial judge improperly considered statements in the presentence report;
and, 11. Whether Arizona's death penalty statute is unconstitutional.
I. The Appeal
1. Limiting the Size of Defendant's Brief
In this case, after defendant requested permission to
file a tendered 286-page opening “brief,” we allowed him to file a 150-page
brief and a 65-page reply. We also granted defendant eight extensions of
time on his opening brief and two more extensions on his reply brief.
Notwithstanding these concessions departing from the rules, see
Ariz.R.Crim.P. 31.13(f), defendant argues that, by limiting the length
of his brief, this court violated his right to due process. We have
rejected this argument before. See State v. Cruz, 175 Ariz. 395,
400-401, 857 P.2d 1249, 1254-1255 (1993); State v. Atwood, 171 Ariz.
576, 658-59, 832 P.2d 593, 675-76 (1992), cert. denied, 506 U.S. 1084,
113 S.Ct. 1058, 122 L.Ed.2d 364 (1993); State v. Amaya-Ruiz, 166 Ariz.
152, 182-83, 800 P.2d 1260, 1290-91 (1990), cert. denied, 500 U.S. 929,
111 S.Ct. 2044, 114 L.Ed.2d 129 (1991). We do so again.
While this case was pending, the court amended Rule
31.13(f) to permit oversize briefs in capital cases, as well as to
provide extra time to file them. If typed, as the briefs in this case
are, opening briefs of up to 80 pages per side are permitted, and the
appellant gets up to 40 more pages to reply. The briefs in this case
could easily have been filed within the parameters of the amended rules,
which provide ample opportunity for effective representation. Indeed,
had the briefs in this case been edited to shorten them, they would have
been much better. Winnowing of issues and argument is essential to good
appellate advocacy. Here the “kitchen sink” approach has again been used.
Many “issues” presented were not raised in the trial court. Other
“issues” raised have been repeatedly and recently decided adversely to
defendant. If preservation is sought to avoid issue preclusion, brevity
should be employed. Many of defendant's issues are patently frivolous.
Excessively long briefs confer no benefit on defendants, unless bulk and
congestion for delay's sake is considered a benefit.
The most effective briefs this court receives,
including those in death penalty cases, all comply with the liberal page
limitations of the rules. Only a few offices in the state chronically
abuse the rules in death penalty cases. Most have no trouble providing
effective representation while filing sensibly sized briefs. Barring an
advance showing of the most extraordinary circumstances, this court is
committed, in all future cases, to enforcing the page limitations set by
II. The Trial
1. “Death Qualification” of the Jury
Defendant argues that the trial court violated his
state and federal constitutional rights by creating a conviction-prone
jury when it excused seven jurors because of their alleged views on the
death penalty. The record discloses that all of these jurors were
excused because they could not be fair and impartial. Six of the jurors
were removed without any discussion of the death penalty because they
could not be fair and impartial in a first degree murder case. The
seventh juror was removed because he could not be fair and impartial if
the death penalty might be imposed. Because defendant did not object
when these jurors were excused and affirmatively passed the jury panel
at the close of voir dire, he is precluded from challenging the jurors
on appeal. See State v. Richmond, 114 Ariz. 186, 192-93, 560 P.2d 41,
47-48 (1976); cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101
(1977); State v. Diaz, 142 Ariz. 136, 137, 688 P.2d 1028, 1029 (App.),
aff'd as modified, 142 Ariz. 119, 688 P.2d 1011 (1984).
In any event, we have stated previously that [J]ury
questioning regarding capital punishment is permissible where the
questioning determines bias of a nature which would prevent a juror from
performing his duty.... [V]oir dire questioning related to a juror's
views on capital punishment is permitted to determine whether those
views would prevent or substantially impair the performance of the
juror's duties to decide the case in accordance with the court's
instructions and the juror's oath. State v. Martinez-Villareal, 145 Ariz.
441, 449, 702 P.2d 670, 678, cert. denied, 474 U.S. 975, 106 S.Ct. 339,
88 L.Ed.2d 324 (1985); see also Lockhart v. McCree, 476 U.S. 162, 167 n.
1, 106 S.Ct. 1758, 1761 n. 1, 90 L.Ed.2d 137 (1986). There are valid
reasons for these questions, and the procedures employed by the trial
court in asking these questions in this case were adequate. We find no
Defendant also argues, however, that excusing the
jurors because they were allegedly against capital punishment violated
article 2, section 12 of the Arizona Constitution because the framers
“intended to forbid a trial court or prosecutor from attempting to
disqualify or excuse prospective jurors solely on the basis of their
philosophical, conscientious or religious beliefs.” (Appellant's Opening
Brief at 11.) We find no merit to this argument. Article 2, section 12
reads, in part: No religious qualification shall be required for any
public office or employment, nor shall any person be incompetent as a
witness or juror in consequence of his opinion on matters of religion....
As we have noted, Art. 2, § 12 provides that no
person shall be incompetent as a juror solely because of his opinion on
matters of religion. It does not say an individual will be qualified as
a juror despite his religious beliefs if those beliefs prevent him or
her from being fair and impartial in a given case.... A person whose
religious beliefs prevent him or her from finding a defendant guilty,
notwithstanding proof beyond a reasonable doubt that defendant is guilty,
is not impartial. State v. Fisher, 141 Ariz. 227, 249, 686 P.2d 750, 772
(emphasis in original), cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83
L.Ed.2d 436 (1984). Whether or not religious scruples affected any
juror's views on the death penalty, Fisher controls.
2. Evidence From the Automobile Search
Defendant argues that the trial court abused its
discretion in denying his motion to suppress the victim's property,
which was seized during a search of the car in which defendant was
riding when arrested in Illinois. Defendant contends that the search
violated both the Fourth Amendment of the United States Constitution and
article 2, § 8 of the Arizona Constitution.
At trial, defendant argued that the Illinois police
conducted an illegal investigative search without a warrant. The trial
court found the search to be a valid inventory search performed incident
to a lawful arrest. We agree. On appeal, defendant expands his argument
and argues for the first time that the inventory search was not
conducted pursuant to established police procedures.
Defendant was one of two passengers in a car stopped
by Mark Wilkans of the Hodgkins, Illinois, police department. Wilkans
smelled alcohol on the breath of the driver, who was then arrested for
driving under the influence after failing field sobriety tests. Pursuant
to departmental policy, Wilkans attempted to determine whether the car
could be released to either of the passengers. When Wilkans radioed in
information about both men, the dispatcher replied that one of the two
was wanted on an outstanding felony warrant. Wilkans secured the
passengers and arrested defendant after determining that he was wanted
for murder in Pima County, Arizona. The other passenger was also
detained because he was too intoxicated to drive.
Under Hodgkins police policy, the car had to be
impounded because no occupant could legally operate it. Police policy
was to inventory items in cars that were impounded. Given the large
number of items in the car, Wilkans had the car towed to the station
before conducting the inventory. At the station, police inventoried the
contents of several sealed boxes and a duffle bag belonging to defendant.
On appeal, defendant argues for the first time that
this search violated his constitutional rights because the state did not
show that Hodgkins police policy was to inventory the contents of closed
containers. In fact-intensive inquiries on motions to suppress, the
court is not obliged to consider new theories from either side asserted
for the first time on appeal, and there are good reasons for not doing
so. State v. Brita, 158 Ariz. 121, 124, 761 P.2d 1025, 1028 (1988).
Aside from this, defendant's position still lacks merit. “[I]nventory
searches are now a well-defined exception to the warrant requirement of
the Fourth Amendment.” Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct.
738, 741, 93 L.Ed.2d 739 (1987). Police may conduct inventory searches
as long as they are conducted pursuant to standardized criteria and not
because of mere suspicions of criminal activity. Id. at 375, 107 S.Ct.
at 743. An officer “may be allowed sufficient latitude to determine
whether a particular container should or should not be opened in light
of the nature of the search and characteristics of the container itself.”
Florida v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 1635, 109 L.Ed.2d 1
(1990). When questioned about the department's policy for inventory
searches, Wilkans testified that All property that comes into our
possession from any vehicles that we are going to take and separate from
the driver or owner has to be inventoried, the contents therein have to
be listed, and any pre-existing damage to the car noted on the towing. (Emphasis
Hodgkins police policy is to inventory the contents
of property taken into possession. That is what occurred here. The trial
court, on the record before it, reasonably found this search to be a
valid inventory search conducted pursuant to Hodgkins police policy.
Because we agree with the trial court's finding, we do not reach the
state's alternative theory of “inevitable discovery.”
3. Precluding Evidence of Victim's Suicidal
Defendant contends that the trial court deprived him
of his state and federal constitutional rights because the court would
not allow him to present evidence that the victim was suicidal and may
have planned his own death.
On a motion in limine based on relevancy grounds, the
trial court ruled that it would not permit evidence of the victim's
alleged suicidal tendencies without some showing of relevance. Defendant,
however, argues that the trial court impermissibly burdened his right
against self-incrimination by allowing this evidence only if defendant
testified. Defendant points to the following exchange: MR. PEASLEY [THE
PROSECUTOR]: Can I say for the record, I think it's clear from
discussions, I assume from discussions yesterday, that if the defendant
were to get on the witness stand and say he helped this guy commit
suicide, that the state's motion and the Court's ruling would change?
THE COURT: It would be a different ballgame.
The trial court was merely stating that the
defendant's testimony could make the suicide evidence relevant. The
trial court did not state, however, that only the defendant's testimony
could establish relevance. Defendant's reliance on State v. Rose, 121
Ariz. 131, 138-39, 589 P.2d 5, 12-13 (1978), is therefore misplaced. In
Rose, a burglary case, the defendant wanted to show that, on entering
the victim's home, he lacked intent to commit a felony. The trial court
would not allow the defendant to introduce evidence on this point unless
the defendant first testified. Id. We held that forcing defendant to
give up his right not to testify in order to present the defense of lack
of intent violated his Fifth Amendment rights. Id.
All the defendant here was required to do was show
relevance. Contrary to defendant's argument, that requirement violates
neither the state nor federal constitutions. Judges have wide latitude
in determining relevance. Crane v. Kentucky, 476 U.S. 683, 689, 106 S.Ct.
2142, 2146, 90 L.Ed.2d 636 (1986). Of course, in a proper case, evidence
of a victim's suicidal tendencies may be relevant and competent, see
Marcum v. Commonwealth, 308 Ky. 740, 215 S.W.2d 846, 847 (1948), but it
is generally inadmissible if the facts preclude the possibility of
suicide. People v. Duncan, 72 Cal.App.2d 247, 164 P.2d 313, 316 (1945);
Marcum, 215 S.W.2d at 847-48.
In Duncan, the victim was found sitting on a sofa
with a fatal knife wound through her heart. The knife that had inflicted
the fatal wound was found on the roof of a neighboring apartment
building. When the defendant attempted to introduce evidence that the
victim had threatened to commit suicide several years before, the court
held the evidence inadmissible because the facts precluded any
possibility that suicide had been the cause of death. The court of
appeals affirmed. Duncan, 164 P.2d at 316.
Similarly, here the evidence of the victim's suicidal
tendencies was also irrelevant. The victim was brutally beaten, hogtied,
and left to die. The offer of proof was that the victim had threatened
suicide, had attempted to persuade a movie producer to film the event,
and had wanted to deprive his estranged wife of their property. The
evidence negates any possibility that the victim killed himself, and the
offer of proof does not suggest that the victim arranged for someone
else to kill him. Trial court evidentiary rulings will not be disturbed
on appeal absent a clear abuse of discretion. State v. Oliver, 158 Ariz.
22, 30, 760 P.2d 1071, 1079 (1988). We find no abuse.
Finally, defendant argues that the trial court should
have allowed the evidence in anyway because the state's motion in limine
to exclude it was untimely. A pretrial motion in limine is merely a
convenient substitute for evidentiary objections at trial. Moreover, “if
a court has the power to extend the time to file motions, it has the
discretion to hear late motions.” State v. Zimmerman, 166 Ariz. 325,
328, 802 P.2d 1024, 1027 (App.1990) (citing State v. Vincent, 147 Ariz.
6, 8, 708 P.2d 97, 99 (App.1985)). If a trial court wishes to entertain
a late motion in limine, it may do so. It may well consider that
procedure preferable to hearing objections piecemeal at trial.
4. The Gruesome Photograph
Defendant argues that admission of a photograph of
the victim deprived him of a fair trial under the state and federal
constitutions because it was gruesome, had no probative value, and was
highly inflammatory. Although we agree that it is gruesome, its
admissibility was within the trial court's discretion.
“The trial court has discretion to decide whether to
admit photographs, and we will not disturb its ruling absent a clear
abuse of that discretion.” Amaya-Ruiz, 166 Ariz. at 170, 800 P.2d at
1278 (citing State v. Bailey, 160 Ariz. 277, 772 P.2d 1130 (1989)). We
apply a two-part analysis to determine whether potentially inflammatory
photographs are admissible: (1) the photograph must be relevant to an
issue in the case; and (2) the photograph's probative value must
outweigh its prejudicial effect. State v. Chapple, 135 Ariz. 281, 288,
660 P.2d 1208, 1215 (1983); see also Ariz.R.Evid. 403.
The photograph is relevant first because it
corroborates the testimony of Scott, Lisa, and Richard regarding
defendant's statements that he had beaten and tied up the victim. Second,
the photograph is relevant because it tends to show that the death was
intentional or premeditated, which was at issue when the photograph was
introduced. Both of these grounds are proper uses of photographic
evidence. State v. Thomas, 110 Ariz. 120, 130, 515 P.2d 865, 875 (1973).
Although the state eventually relied solely on a
theory of felony murder, the photo is still relevant. The state must
prove each element of first degree murder beyond a reasonable doubt.
Besides corroborating the testimony of several witnesses, the photograph
tends to show that the death resulted from the underlying felony and
tends to negate a natural or accidental death. The admission of the
photograph was well within the trial court's discretion.
5. Pretrial Notice of State's Theory
An indictment must give defendant notice of the
crimes charged. State v. Arnett,, 158 Ariz. 15, 18, 760 P.2d 1064, 1067
(1988). Defendant submits, however, that the state is also required to
provide him with notice of the theory under which it will proceed at
trial. We have previously rejected this argument and do so again. See
Arnett, 158 Ariz. at 18, 760 P.2d at 1067; State v. Tison, 129 Ariz.
526, 538, 633 P.2d 335, 347 (1981), cert. denied, 459 U.S. 882, 103 S.Ct.
180, 74 L.Ed.2d 147 (1982).
Defendant argues alternatively that, even if he
originally received sufficient notice of the charges, the prosecutor
misled him into believing that the state would proceed on a premeditated
theory as well as on a felony murder theory. The gist of defendant's
argument is that he was surprised and prejudiced by the state's election
during trial to abandon premeditation and proceed solely on felony
murder. From this, defendant argues that “reversal is required even if
the formal charge gives notice appropriately.” Defendant offers no
authority for this proposition, and we reject it. The record belies
defendant's present claim of surprise, which is, in any event,
immaterial. The law requires notice of the charges. The rules of
procedure thereafter provide for discovery. The prosecutor has no
independent duty to tell the defendant how the state intends to proceed
or to elect theories in advance. Arnett, 158 Ariz. at 18, 760 P.2d at
1067; Tison, 129 Ariz. at 538, 633 P.2d at 347.
6. Jury Instructions
Defendant contends that the jury should have been
instructed on premeditated murder despite the state's withdrawal of that
theory. According to defendant, instructing on premeditation would also
require instructing on other types of homicide as lesser included
offenses of premeditated murder. The state contends that, under the
facts of this case, defendant would not have been entitled to lesser
included homicide instructions even if premeditation had not been
withdrawn. We need not resolve this dispute, which involves a factual
analysis of the record, because there is no obligation to instruct the
jury on theories withdrawn in the prosecutor's discretion. See State v.
LaGrand, 153 Ariz. 21, 30 n. 4, 734 P.2d 563, 572 n. 4 (prosecutor has
discretion on what crimes to charge and prosecute), cert. denied, 484
U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987).
Defendant argues that because he was originally
charged with both premeditated and felony murder Beck v. Alabama, 447
U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), constitutionally
required the submission of premeditated murder and lesser included
homicide offenses. We disagree. In Beck, the Court stated only that, in
a capital case, due process entitles the defendant to instructions on
any existing lesser included offenses to the crime charged that are
factually supported by the evidence. Id.; see also State v. Vickers, 129
Ariz. 506, 513, 633 P.2d 315, 322 (1981). Even assuming the factual
applicability of lesser included offenses in this case if premeditation
had gone to the jury, Beck does not require the court to give
instructions on crimes or theories no longer in issue.
Although this court has consistently held that felony
murder contains no lesser included homicide offenses, defendant asks us
to reconsider those holdings and to require trial judges to instruct
juries on second degree murder and manslaughter in felony murder cases.
We decline to do so. Defendant also contends that burglary is a lesser
included offense of the felony murder in this case and the jury should
have been so instructed. We disagree but, in any event, the jury was
instructed on both burglary and felony murder and defendant was
convicted of both, so we fail to see how defendant would benefit by
labelling burglary a lesser included offense of felony murder.
Finally, defendant argues that state and federal due
process require that the jury be instructed on lesser related offenses,
as distinguished from lesser included offenses. Lesser related offenses
are offenses supported by the facts of the case, although not included
in the charging document. Some states recognize the doctrine of lesser
related offenses. See, e.g., People v. Rivera, 186 Colo. 24, 525 P.2d
431 (1974). However, Arizona does not. The application of Arizona's
doctrine of lesser included offenses depends on an analysis of the terms
of the charging document or the elements of the crimes charged, rather
than the evidentiary facts produced at trial. “The elements of the crime
... determine whether a crime is a lesser included offense ..., not the
facts of a given case.” State v. Laffoon, 125 Ariz. 484, 487, 610 P.2d
1045, 1048 (1980); State v. Teran, 130 Ariz. 277, 279, 635 P.2d 870, 872
(App.1981). Our rule is consistent with federal practice. Schmuck v.
United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The
trial court did not err.
Defendant next argues that under Tison v. Arizona,
481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987), defendant could be
convicted of felony murder only if the jury found that he displayed a
reckless indifference to human life. We disagree. Tison does not speak
to the mens rea necessary for a conviction for felony murder. Instead,
Tison discusses the mens rea necessary to be sentenced to death after
being convicted of felony murder. See generally id.
There is also no merit to defendant's argument that
the trial court should have instructed the jury to acquit if they had a
reasonable doubt about whether defendant was at the scene. Jury
instructions are to be instructions on the applicable law, not comments
on bits and pieces of evidence. See Ariz. Const., art. VI, § 27; cf.
State v. Goldston, 126 Ariz. 171, 173, 613 P.2d 835, 837 (App.1980)
(error to instruct that recent false statements by defendant, if made,
were evidence of theft and burglary). The trial judge properly declined
to give the requested instruction. Defendant's contention that a
proximate cause instruction was necessary fails because causation was
not in issue. See State v. Smith, 160 Ariz. 507, 510, 774 P.2d 811, 814
Defendant requested a Willits FN2 instruction based
on the state's alleged failure to test for fingerprints a knife found at
the scene. Willits requires that an instruction be given when the State
loses or destroys evidence that could help defendant's case. Willits, 96
Ariz. at 191, 393 P.2d at 279. No evidence suggests that the knife was
used in the killing. Moreover, the state did not lose or destroy the
knife, and defendant has not shown how the knife might be exculpatory.
Finally, defendant had every opportunity to test the knife for himself
and failed to do so; therefore, a Willits instruction would have been
inappropriate. FN2. State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
Defendant also raises several additional objections,
not raised at trial, concerning jury instructions. Absent fundamental
error, these objections are precluded on appeal. Ariz.R.Crim.P. 21.3(c);
see also State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991).
First, defendant argues that the trial court erred by
not giving an instruction defining “intentionally.” Failure to define “intentionally,”
as used in an instruction, is not fundamental error. State v. Barnett,
142 Ariz. 592, 594-95, 691 P.2d 683, 685-86 (1984). Defendant contends
that the court's instruction defining reasonable doubt is erroneous.FN3
Giving this instruction is not fundamental error; therefore, we do not
consider its merits in this case. State v. Duzan, 176 Ariz. 463, 862
P.2d 223 (App.1993). FN3. The court's instruction reads as follows: ...
The State must prove the defendant guilty beyond a reasonable doubt. The
term reasonable doubt means doubt based upon reason. It does not mean an
imaginary or possible doubt. It is a doubt which may arise in your minds
after a careful and impartial consideration of all of the evidence or
from the lack of evidence.
The trial court also committed no error, fundamental
or otherwise, by failing to instruct the jury that informer testimony is
inherently unreliable. see state v. gretzler, 126 ariz. 60, 89, 612 P.2d
1023, 1052 (1980) (instructing the jury to consider the testimony of an
interested witness with skepticism is an impermissible comment on the
evidence); State v. Korte, 115 Ariz. 517, 519, 566 P.2d 318, 320 (App.1977).
Defendant contends that the trial court committed
fundamental error in failing to define “in furtherance of” as that term
is used in Arizona's felony murder statute. That term, in the context of
felony murder, is defined in Arizona case law to mean “death result[ing]
‘from an action taken to facilitate the accomplishment of [the felony].’
” State v. Hallman, 137 Ariz. 31, 38, 668 P.2d 874, 881 (1983) (quoting
State v. Arias, 131 Ariz. 441, 443, 641 P.2d 1285, 1287 (1982)). “In
furtherance of” is a common term. Assuming, however, that the term
should have been defined, the failure to do so certainly is not
fundamental error under the facts of this case. Consistent with
defendant's boasts to his friends in Phoenix that he had “beaten the
fuck out of some old man” and tied him up while burglarizing his house,
the victim was found bound and bludgeoned. No evidence suggests that the
death was not “in furtherance of” the burglary. Therefore, we find no
fundamental error. Cf. Gendron, 168 Ariz. at 155, 812 P.2d at 628 (
citing Kentucky v. Whorton, 441 U.S. 786, 789, 99 S.Ct. 2088, 2090, 60
L.Ed.2d 640 (1979)) (whether failure to give an instruction amounts to
fundamental error “must be evaluated in light of the totality of the
circumstances” of the case).
7. Arizona's Felony Murder Statute
Defendant asserts that Arizona's felony murder
statute creates an unconstitutional mandatory presumption of guilt in
violation of the due process clause or creates a strict liability crime
that may lead to the death penalty in violation of the Eighth
Amendment's ban on cruel and unusual punishment. Similar arguments have
been rejected as meritless. See State v. McLoughlin, 139 Ariz. 481, 485,
679 P.2d 504, 508 (1984). We have stated previously: “[t]he felony-murder
rule, designed as it is to protect human life, represents sound public
policy, is reasonably related to the end sought to be accomplished and
is not constitutionally impermissible.” State v. Celaya, 135 Ariz. 248,
255, 660 P.2d 849, 856 (1983) (quoting State v. Goodseal, 220 Kan. 487,
553 P.2d 279, 286 (1976)); LaGrand, 153 Ariz. at 30, 734 P.2d at 572;
State v. Montes, 136 Ariz. 491, 498, 667 P.2d 191, 198 (1983).
8. Conduct of Trial Judge
Defendant complains that the trial judge's behavior
during trial prejudiced him. Late in the case, defendant claimed that
the trial judge had looked away from the jury during defendant's opening
statement. A second claim is that the trial court was impatient with
defense counsel during the defense case. Defendant's claims are based on
counsel's subjective impressions. Both parties are entitled to a trial
presided over by a fair and impartial judge. State v. Carver, 160 Ariz.
167, 172, 771 P.2d 1382, 1387 (1989). The trial court is presumed to be
impartial, and the party alleging bias must prove bias by a
preponderance of the evidence. Id.
Defendant has placed no evidence in the record of
bias by the trial judge. All that is referred to are unsupported
assertions by defense counsel during trial, at least one of them long
after the alleged fact. There is no substantiation of the claim of
judicial misconduct, nor is there any showing of resulting prejudice.
9. Prosecutorial Misconduct
Defendant makes several claims of prosecutorial
misconduct. Because none was raised at trial, all are precluded absent
fundamental error. Ariz.R.Crim.P. 21.3; see also State v. Smith, 138
Ariz. 79, 83, 673 P.2d 17, 21 (1983), cert. denied, 465 U.S. 1074, 104
S.Ct. 1429, 79 L.Ed.2d 753 (1984). Defendant claims that the state
impermissibly commented on his failure to call a witness, “Shorty.”
Defense counsel, in the presence of the jury, promised to call Shorty if
the state did not. However, Shorty was not called. All the state did was
remind the jury, in argument, that defense counsel had not done what she
had promised to do. In the context of this case, the state's comment was
not improper. See State v. Jerdee, 154 Ariz. 414, 417, 743 P.2d 10, 13 (App.1987).
Defendant claims that the state engaged in misconduct
by stating in closing argument that certain questions by defense counsel
were “a defense ploy,” “improper,” and “outrageous.” The argument, in
context, was well within the wide latitude afforded both parties in
closing argument. See, e.g., Amaya-Ruiz, 166 Ariz. at 171, 800 P.2d at
Defendant complains of the prosecutor's statement in
argument that defendant would be “tickled pink” if he were convicted of
only one charge. Defendant contends that the statement is an
impermissible statement of the prosecutor's personal opinion of
defendant's guilt, citing Ariz.R.Sup.Ct. 42, ER 3.4(e); State v. Abney,
103 Ariz. 294, 440 P.2d 914 (1968); State v. Van Den Berg, 164 Ariz.
192, 196, 791 P.2d 1075, 1079 (App.1990); and State v. Woodward, 21
Ariz.App. 133, 134, 516 P.2d 589, 590 (1973). In the cases cited by
defendant, the prosecutor commented directly on the defendant's guilt.
Here, defense counsel argued in closing that the jury
could “acquit [defendant] of three charges, you can acquit him of two
charges. But acquit him.” In response, the prosecutor argued that “[i]f
you convict [defendant] of one, he will be tickled pink, that is not
holding him accountable for what he did. When you consider the evidence
and testimony, return verdicts of guilty of all three counts.” In the
context of this case, the prosecutor's statement was within the latitude
afforded attorneys in final argument. See Amaya-Ruiz, 166 Ariz. at 171,
800 P.2d at 1279. Certainly, nothing approaching fundamental error
occurred. See Gendron, 168 Ariz. at 155, 812 P.2d at 628. Likewise, the
prosecutor's statement in closing argument that if the jury found
defendant guilty of burglary it had decided the felony murder charge as
well did not amount to error, let alone fundamental error. See Smith,
138 Ariz. at 83, 673 P.2d at 21.
Finally, defendant argues that the prosecutor
impermissibly shifted the burden of proof during closing argument. The
prosecutor argued: But defense has to consider what to say, knowing
there is a killing, knowing that three witnesses are going to come into
court and say what the defendant said, talk about what he said he did to
[the victim], what's the explanation? (Emphasis added.) Both the
prosecutor and the judge informed the jury that, in the words of the
prosecutor, “what the lawyers say is not evidence ...” and “ [t]he
defendant doesn't have to do anything in a criminal trial, they don't
have to do a thing, they don't have to call a witness [.] ...”
The cases cited by defendant in support of his
argument on this point deal with situations where the trial court
instructed the jury in a manner that impermissibly shifted the burden of
proof to the defendant. See, e.g., State v. Tittle, 147 Ariz. 339, 342,
710 P.2d 449, 452 (1985); State v. Mincey, 130 Ariz. 389, 397, 636 P.2d
637, 645 (1981); cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d
871 (1982); State v. Sterling, 148 Ariz. 134, 136, 713 P.2d 335, 337 (App.1985).
Here, however, defendant claims that arguments by the prosecutor shifted
the burden of proof to the defendant. The challenged statements could
not possibly have affected the jury's view of the burden of proof.
10. Release of Juror's Names and Addresses
After trial, defendant asked the judge to provide him
with the names and addresses of the trial jurors, contending he was
entitled to this information to investigate and see whether any juror
was guilty of misconduct. The judge refused. Defendant contends that,
because this is a capital case, it justifies “the exercise of judicial
authority to order more liberal discovery than usual.” We disagree. For
a discussion by this court of our concerns in this area in the grand
jury context, see State ex rel. Hastings v. Sult, 162 Ariz. 112, 781
P.2d 590 (1989). In researching the cases cited by counsel, and through
our own research, we find the judge's refusal of this information to be
III. The Sentencing
1. The Prior Conviction
Defendant contends that the state did not prove
beyond a reasonable doubt that he has a prior conviction for a crime of
violence under § 13-703(F)(2). He argues that no certified copy of the
conviction was entered in the record and no stipulation between the
parties exists. We agree that no certified copy of the conviction was
introduced. Instead, the record discloses only an FBI report disclosing
that a Thomas West was convicted of manslaughter in Illinois. Defendant
argues that the rap sheet is not tied to him and is hearsay. These
foundational and hearsay objections were not made in the lower court;
therefore, we consider them precluded absent fundamental error. State v.
Allen, 157 Ariz. 165, 170, 755 P.2d 1153, 1158 (1988). However, even
considering the rap sheet to be properly in evidence, we agree with
defendant that the information it contains is insufficient to prove an
aggravating factor under § 13-703(F)(2).
We do not, however, agree with defendant's contention
that there was no stipulation concerning the prior conviction. The
absence of a certified copy is, perhaps, not surprising, in view of the
following statement made by defense counsel at the first sentencing
hearing: We are agreeable to stipulating that Mr. West has suffered a
prior manslaughter conviction which satisfies the aggravation, the
aggravating circumstance described in 13-703 which is that it was a
crime involving violence I think is the language. We read this for what
it was intended to be-a stipulation.
The defendant complains, however, that he did not
personally participate in the stipulation. “It is well established that
a defendant may be bound by his counsel's trial strategy decision to
waive even constitutional rights.” State v. Corrales, 138 Ariz. 583,
595, 676 P.2d 615, 627 (1983). The only exception to this rule is that
the defendant himself must consent to the waiver of his constitutional
rights when the circumstances of the case are exceptional. Henry v.
Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965)
(counsel has authority to waive introduction of illegally seized
evidence without defendant's consent). We do not believe a stipulation
to facts that the state could easily have proved amounts to an
exceptional circumstance requiring defendant's consent. The stipulation
is binding until and unless it is withdrawn.
A court may, of course, relieve a party of a
stipulation on a motion for good cause shown, State v. Sorrell, 109 Ariz.
171, 173, 506 P.2d 1065, 1067 (1973) ( citing Gangadean v. Flori
Investment Co., 106 Ariz. 245, 474 P.2d 1006 (1970)), but defendant
never made such a request. Defense counsel said nothing at the second
sentencing about the stipulation and did not request permission to
withdraw from it. An Illinois appellate court opinion issued after the
sentencing discloses that the defendant was indeed convicted of
voluntary manslaughter, a crime included under § 13-703(F)(2). See
People v. West, 209 Ill.App.3d 1019, 154 Ill.Dec. 724, 724-25, 568 N.E.2d
945, 945-46 aff'd, 145 Ill.2d 517, 164 Ill.Dec. 912, 584 N.E.2d 124
We encourage stipulations to narrow issues and to
promote judicial economy. Id. Defendant may have had good reasons for
concentrating his sentencing hearing on issues other than his prior
conviction. Even if it were error for the trial court to find the
aggravating factor based on the stipulation, it was invited by the
defendant. See State v. Diaz, 168 Ariz. 363, 365, 813 P.2d 728, 730
(1991) (party could not complain on appeal about the giving of an
instruction he himself requested). We therefore reject defendant's
argument that the aggravating factor of a prior violent felony
conviction was not adequately proved.
2. Especially Cruel, Heinous or Depraved
The trial court found this murder to be both
especially cruel and especially heinous within the meaning of A.R.S. §
13-703(F)(6). Defendant challenges these findings. We agree with the
trial court's finding that the murder was especially heinous. This
aggravating factor focuses on the murderer's state of mind. Amaya-Ruiz,
166 Ariz. at 178, 800 P.2d at 1286; State v. Fulminante, 161 Ariz. 237,
255, 778 P.2d 602, 620 (1988). In State v. Gretzler, 135 Ariz. 42, 52,
659 P.2d 1, 11, cert. denied, 461 U.S. 971, 103 S.Ct. 2444, 77 L.Ed.2d
1327 (1983), we set forth several specific factors suggested by earlier
cases as appropriate in determining whether heinousness is present.
Later cases have found additional factors to be appropriate
considerations, but they are not present here. State v. Stanley, 167
Ariz. 519, 529, 809 P.2d 944, 954, cert. denied, 502 U.S. 1014, 112 S.Ct.
660, 116 L.Ed.2d 751 (1991) (relationship between defendant and victim);
State v. Smith, 141 Ariz. 510, 511-12, 687 P.2d 1265, 1266-67 (1984) (killing
to eliminate witness). The Gretzler factors are (1) whether the murderer
relished the murder; (2) whether the murderer inflicted gratuitous
violence on the victim beyond that necessary to commit the crime; (3)
whether the murderer inflicted needless mutilation on the victim; (4)
whether the murder was senseless; and (5) whether the victim was
helpless. Gretzler, 135 Ariz. at 52, 659 P.2d at 11.
Four of the five Gretzler factors are present here.
Defendant relished the murder, he inflicted gratuitous violence beyond
that necessary to commit the crime, the victim was helpless, and the
murder was senseless. When defendant returned to Phoenix, he told people
that he “beat the fuck out of some old man” and bragged about cuts and
bruises on his hand coming from beating up “the old man he ripped off.”
This shows that defendant relished his crime. Certainly, tying the
victim up and pummeling his face until many bones were broken and the
victim's hard palate detached, was gratuitous violence far beyond
anything necessary to commit burglary. Just as certainly, the victim was
helpless. Finally, the murder was senseless. A murder is senseless if it
was unnecessary to achieve the defendant's goal. State v. Comer, 165
Ariz. 413, 429, 799 P.2d 333, 349 (1990), cert. denied, 499 U.S. 943,
111 S.Ct. 1404, 113 L.Ed.2d 460 (1991). Defendant did nothing to render
aid after the crime, even when urged to.
The trial judge correctly found the murder to be
especially heinous. Because the words in the statute “especially cruel,
heinous, or depraved,” are stated in the disjunctive, a finding of any
one of the three factors will suffice for finding that this aggravating
factor exists. See, e.g., State v. Walton, 159 Ariz. 571, 587, 769 P.2d
1017, 1033 (1989), aff'd, Walton v. Arizona, 497 U.S. 639, 110 S.Ct.
3047, 111 L.Ed.2d 511 (1990). We, therefore, do not separately analyze
defendant's attack on the trial court's finding that the murder was also
3. Pecuniary Gain
Defendant challenges the trial judge's finding that
the murder was committed for pecuniary gain. In State v. Clark, 126 Ariz.
428, 436, 616 P.2d 888, 896, cert. denied, 449 U.S. 1067, 101 S.Ct. 796,
66 L.Ed.2d 612 (1980), this court held that if the expectation of
pecuniary gain is among the causes of the killing, the aggravating
factor of pecuniary gain is established. See also LaGrand, 153 Ariz. at
36, 734 P.2d at 578. The evidence here showed that defendant was
motivated by a desire to steal the victim's property. Certainly, the
expectation of pecuniary gain was among the causes of the victim's death.
The trial judge's finding is correct.
Defendant argues, however, that the pecuniary gain
finding violates the Eighth Amendment because it repeats an element of
the crime of burglary, resulting in an insufficient narrowing of the
class of death eligible defendants. Dealing with a similar argument in
the robbery context, we have held that the facts necessary to prove
pecuniary gain are not the same as those necessary to prove robbery.
State v. Carriger, 143 Ariz. 142, 161, 692 P.2d 991, 1010 (1984), cert.
denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1985). In
Carriger, we stated that “[p]roving a taking in a robbery does not
necessarily prove the motivation for a murder, and the state cannot be
said to be using one fact to prove two different items.” Id. (Emphasis
added.) This distinction is equally true for burglary. The defendant
need not intend to kill the victim or even to take his property to be
guilty of burglary. Additionally, a felony murder committed in the
course of a burglary does not necessarily result in a finding of
pecuniary gain, because burglary may be based on the defendant's intent
to commit any felony, not just theft. See A.R.S. § 13-1506; State v.
Miller, 108 Ariz. 441, 445, 501 P.2d 383, 387 (1972). Proving a burglary,
therefore, does not necessarily prove pecuniary motivation for the
Federal cases hold that Arizona's capital sentencing
scheme, as construed by this court, does narrow the class of death
eligible defendants sufficiently to comply with the Eighth Amendment. A
capital sentencing scheme is constitutional if it “ ‘genuinely narrow[s]
the class of persons eligible for the death penalty and ... reasonably
justif[ies] the imposition of a more severe sentence on the defendant
compared to others found guilty of murder.’ ” Lowenfield v. Phelps, 484
U.S. 231, 244, 108 S.Ct. 546, 554, 98 L.Ed.2d 568 (1988) (quoting Zant
v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235
Defendant's argument that we must narrow the class of
first degree murderers for pecuniary gain into death eligible and non-death
eligible cuts too narrowly. What is required is that the class of
murderers in general be narrowed into death eligible and non-death
eligible. Arizona does this first at the guilt phase, by making only
those guilty of first degree murder potentially death eligible. A.R.S. §
13-703(A). Further, only certain first degree murderers are death
eligible-those who commit a first degree murder with one or more
aggravating circumstances present. A.R.S. § 13-703(E). That all first
degree murders committed for pecuniary gain are death eligible does not
render Arizona's capital sentencing scheme unconstitutional. See
Lowenfield, 484 U.S. at 241-46, 108 S.Ct. at 553-55 (upholding
Louisiana's capital sentencing scheme where only first degree murderers
were death eligible, and four of the five types of first degree murder
led automatically to a death qualifying aggravating circumstance that
was identical to an element of the crime). We therefore reject
defendant's argument and conclude that Arizona's aggravating factor of
pecuniary gain is constitutional.
4. Mitigating Circumstances Found Not to Exist
Defendant argues that the trial judge improperly
rejected several mitigating factors. The sentencing judge must consider
“any aspect of the defendant's character or record and any circumstance
of the offense relevant to determining whether a sentence less than
death might be appropriate.” State v. McCall, 139 Ariz. 147, 162, 677
P.2d 920, 935 (1983), cert. denied, 467 U.S. 1220, 104 S.Ct. 2670, 81
L.Ed.2d 375 (1984). Defendant must establish mitigating factors by a
preponderance of the evidence. See State v. McMurtrey, 143 Ariz. 71, 73,
691 P.2d 1099, 1101 (1984), appeal after remand, 151 Ariz. 105, 726 P.2d
202 (1986), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 530
(1987). Additionally, the trial court has discretion in deciding how
much weight to give to the mitigating factors that the defendant offers.
State v. Atwood, 171 Ariz. at 648, 832 P.2d at 665. On an independent
review of the record, see State v. Gillies, 135 Ariz. 500, 511, 662 P.2d
1007, 1018 (1983), we find that the trial judge correctly concluded that
defendant has established two mitigating factors.
Defendant claims that the fact that his conviction
was based on a felony murder theory should be considered a mitigating
circumstance. However, in a similar case, we rejected that claim, and we
reject it here as well. See State v. Zaragoza, 135 Ariz. 63, 70, 659
P.2d 22, 29, cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d
1356 (1983); see also Atwood, 171 Ariz. at 648-49, 832 P.2d at 665-666.
In Zaragoza, we stated that giving a felony murder instruction may be
mitigating if defendant can show that he did not intend to kill the
victim or know with substantial certainty that his acts would cause
death. 135 Ariz. at 70, 659 P.2d at 29.
There, the defendant “repeatedly hit the victim on
the head and left her bleeding in the alley.” Id. The court concluded
that “[i]t is reasonable to conclude, in the absence of any evidence to
the contrary, that one who beats a 78 year old woman on the head and
leaves her bleeding in an alley intends to kill or knows with
substantial certainty that his action will cause death.” Id. Here,
defendant repeatedly beat a 53-year-old man on the head and left him
bound hand and foot and bleeding in an empty house. Later, he
deliberately refused to seek aid, although urged to do so. Certainly, it
is reasonable to conclude that defendant “intend[ed] to kill or [knew]
with substantial certainty that his action [would] cause death.” Id.
Thus, the fact that it was a felony murder is not mitigating.
Almost unbelievably, defendant argues that the facts
of the crime (victim left ungagged, door left open, and light left on)
should be considered mitigating. We easily reject this contention.
Next, defendant claims intoxication as mitigation.
Defendant's own evidence refutes that claim. A defense expert testified:
MR. DAWLEY: Okay. So you are not offering an opinion, so everyone is
clear, as to whether he was under the influence at the particular time
of the offense? EXPERT: No. I am not willing to do that. The trial judge
was justified in rejecting intoxication as a mitigating factor. See
Atwood, 171 Ariz. at 650-51, 832 P.2d at 667-68.
The trial judge also was justified in finding that
defendant's chemical dependency did not significantly impair his ability
to appreciate the wrongfulness of his conduct or to conform his conduct
to the requirements of the law under A.R.S. § 13-703(G)(1). See
Zaragoza, 135 Ariz. at 70, 659 P.2d at 29. Although defendant presented
evidence that his chemical dependency made his choices in life more
difficult, and that he made poor choices as a result of his addiction,
the defense expert would not testify that defendant could not
differentiate between right and wrong or conform his conduct to the
requirements of the law. The trial court correctly determined that
defendant's substance abuse did not establish the statutory mitigating
factor specified in § 13-703(G)(1). See Atwood, 171 Ariz. at 651, 832
P.2d at 668. The trial court did find defendant's substance abuse to be
a nonstatutory mitigating factor, discussed infra.
Defendant also argues that his failure to complete a
drug rehabilitation program should have been considered in mitigation.
The evidence suggests that defendant turned down the opportunity to
enter such a program on three separate occasions; therefore, the trial
judge correctly rejected this claim of mitigation. See Atwood, 171 Ariz.
at 653-54, 832 P.2d at 670-71 (defendant's failure to take advantage of
available therapy indicated unwillingness to be rehabilitated).
Defendant submits that when drug free he has good work skills, is
nonviolent, and is law abiding. Given defendant's repeated rejection of
opportunities to enter drug rehabilitation, even if what defendant
claims is true, the evidence is not mitigating in this case. Cf. id.
Defendant submits that he had trouble in school,
possibly had a learning disability, and only completed nine years of
education. He claims that this is mitigating. There is no showing at all
that defendant did not know the difference between right and wrong or
could not conform his conduct to the dictates of the law. See A.R.S. §
13-703(G)(1). Nor does the evidence on these subjects show any
Defendant claims his age, 28 at the time of the crime,
is a mitigating circumstance. We reject this claim, particularly in
light of defendant's prior criminal history and experience with law
enforcement. See, e.g., Walton, 159 Ariz. at 589, 769 P.2d at 1035;
State v. Vickers, 159 Ariz. 532, 546, 768 P.2d 1177, 1191 (1989), cert.
denied, 497 U.S. 1033, 110 S.Ct. 3298, 111 L.Ed.2d 806 (1990).
Defendant claims that he expressed remorse and that
is a mitigating factor. State v. Wallace, 151 Ariz. 362, 368-69, 728
P.2d 232, 238-39 (1986). Defendant never publicly accepted
responsibility for his crime; therefore, his remorse for the death of
the victim, if any, is ineffectual. See Carriger, 143 Ariz. at 162, 692
P.2d at 1011. Much of the evidence, including defendant's own actions
and words, belie his present claim of remorse.
Defendant contends that he enjoys the support of his
family and has a child, which should be considered in mitigation. When
not in prison, defendant's contact with his family and child was minimal.
We do not see how this “family support,” to the extent that it exists,
is mitigating. See Smith, 141 Ariz. at 512, 687 P.2d at 1267 (rejecting
claim that the defendant having a small child was mitigating when there
was little contact and no apparent “family tie”). We also find no merit
to defendant's contention that his work skills, to the extent that they
exist, should be considered mitigating.
Defendant's claim that his cooperation with
authorities in waiving his extradition hearing is a mitigating factor is
meritless. See State v. Jordan, 126 Ariz. 283, 289, 614 P.2d 825, 831,
cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). The
trial judge correctly found that defendant's failure to contest an event
that would certainly have occurred without his consent did not create a
The trial judge also correctly declined to find the
circumstances of defendant's prior manslaughter conviction to be
mitigating. The trial judge found that the defense version of the facts
of the Illinois offense, a version not brought out at trial in Illinois,
was incredible. The trial judge is in the best position to determine the
credibility of witnesses. State v. Fierro, 166 Ariz. 539, 553, 804 P.2d
72, 86 (1990). We accept the trial judge's finding that the
circumstances of defendant's previous manslaughter conviction were not
mitigating. Cf. Atwood, 171 Ariz. at 654-55, 832 P.2d at 671-72 (finding
meritless the defendant's argument that facts of prior conviction were
mitigating after reviewing record of that prior conviction).
5. Mitigating Circumstances Found to Exist
The trial judge determined that defendant had proved,
by a preponderance of the evidence, two mitigating factors: defendant
had a substance abuse problem and suffered a deprived childhood. Based
on our independent review of the record, we agree that these two
mitigating factors have been established by a preponderance of the
evidence. Defendant claims, however, that the two mitigating factors
were given insufficient weight at sentencing.
We agree with the trial judge that these two
mitigating factors are insufficient to overcome the aggravating factors;
therefore, leniency is not appropriate. See A.R.S. § 13-703(E).
Defendant had ample opportunities to overcome his substance abuse
problem. Defendant declined three separate referrals to drug treatment.
We cannot ascribe much weight in mitigation to a problem for which
defendant refuses to take responsibility. Cf. Atwood, 171 Ariz. at
653-54, 832 P.2d at 670-71 (defendant's lack of interest in available
therapy does not warrant leniency).
We also cannot ascribe much weight to defendant's
difficult family background, because defendant has not shown how his
difficult background affected his behavior. State v. Wallace, 160 Ariz.
424, 427, 773 P.2d 983, 986 (1989), cert. denied, 494 U.S. 1047, 110
S.Ct. 1513, 108 L.Ed.2d 649 (1990). Every person is affected by the
circumstances of his or her upbringing. Evidence showed that defendant's
brother, a product of the same home, has undertaken considerable effort
to straighten out his life and avoid the troubles that have plagued
defendant. We see nothing in the record by way of difficult family
background that excuses defendant from the rules of conduct that apply
to everyone else. See Gretzler, 135 Ariz. at 58, 659 P.2d at 17.
After conducting an independent review of the record,
see Gillies, 135 Ariz. at 511, 662 P.2d at 1018, we find that the
mitigating factors in defendant's favor are not weighty enough to
overcome the aggravating factors against him.FN4 FN4. We stated earlier
in this opinion that we believe this to be an appropriate death penalty
case even if it be assumed that the Illinois voluntary manslaughter
conviction was not properly proved.
6. Felony Murder; Enmund/Tison Hearing
Defendant argues that the trial court did not make a
finding sufficient to comply with Enmund v. Florida, 458 U.S. 782, 102
S.Ct. 3368, 73 L.Ed.2d 1140 (1982), and, therefore, his death sentence
must be vacated. We disagree. The trial court found on the record that
“the defendant knew or had reason to know that the deceased was dying or
had suffered serious physical injuries.” Under the United States Supreme
Court's holding in Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95
L.Ed.2d 127 (1987), when the defendant is convicted of felony murder, he
can be sentenced to death only if he was a major participant in the
crime and displayed reckless indifference to human life. The trial
court's statement is sufficient under Tison.
Aside from that, the jury's verdict here supplies the
necessary finding to meet the more stringent Enmund requirement that
defendant either killed, attempted to kill, or intended to kill the
victim. See State v. Atwood, 171 Ariz. at 649-50, 832 P.2d at 666-67. In
Atwood, this court held that when the case involves a single defendant
who actually kills, the jury's verdict, based on instructions given them
by the trial judge, supplies the necessary Enmund finding. Id.
Here, the trial judge instructed the jury: A person
commits first degree murder if such person acting alone or with one or
more other persons commits or attempts to commit burglary and in the
course of and in furtherance of such offense or immediate flight from
such offense such person or another person causes the death of any
person. Unlike Atwood, the instruction here theoretically allowed the
jury to find defendant guilty of first degree murder upon the
participation of another in the felony. However, the evidence in this
case showed that no one else participated in the burglary. Therefore,
the jury could only have reached its verdict if it found that defendant
killed the victim.FN5
FN5. Defendant also argues that notwithstanding Tison,
State v. McDaniel, 136 Ariz. 188, 199, 665 P.2d 70, 81 (1983), prevents
a defendant from being sentenced to death under the Arizona Constitution
if the defendant merely displayed a reckless indifference to human life
in committing felony murder. Defendant also argues that A.R.S. § 13-703
requires more than the reckless indifference to human life standard
enunciated in Tison. Because the jury found that defendant actually
killed, we need not reach this argument in this case.
7. Notice of Aggravating Circumstances
Defendant contends that the state is required to give
him pretrial notice of the statutory aggravating factors it will rely on
at sentencing. “There is no requirement that a defendant be advised in
the indictment or information of the statutory penalty, or that he be
advised what aggravating circumstances will be presented at sentencing
in the event of a conviction.” State v. Richmond, 136 Ariz. 312, 316,
666 P.2d 57, 61, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d
367 (1983). Instead, due process requires only that the prosecution
disclose aggravating circumstances “sufficiently in advance of the
hearing that the defendant will have a reasonable opportunity to prepare
rebuttal.” State v. Ortiz, 131 Ariz. 195, 207, 639 P.2d 1020, 1032
(1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2259, 72 L.Ed.2d 863
(1982), disapproved on other grounds, State v. Gretzler, 135 Ariz. 42,
57 n. 2, 659 P.2d 1, 16 n. 2 (1983).
Defendant received notice of the aggravating factors
to be used against him on April 19, 1988. The sentencing hearing was not
held until August 1, 1988. Defendant had ample time to prepare rebuttal
to the aggravating factors to be used against him. We hold that the
post-trial notice of aggravating factors was adequate.FN6 Id. FN6. After
the sentencing in this case, Ariz.R.Crim.P. 15.1(g) was adopted. It
provides that the state shall, within 10 days after verdict, give notice
of the aggravating factors upon which it intends to rely.
8. Request to Voir Dire the Trial Judge
Defendant contends he has a due process right to voir
dire the trial judge concerning possible bias or predisposition to
impose the death penalty. He does not. Stanley, 167 Ariz. at 527, 809
P.2d at 952; State v. Rossi, 154 Ariz. 245, 247-48, 741 P.2d 1223,
9. Prosecutorial Misconduct
Defendant complains of alleged prosecutorial
misconduct at the sentencing hearing. Defendant did not object below;
therefore, his claims are precluded absent fundamental error. Gendron,
168 Ariz. at 155, 812 P.2d at 628. In a legal argument to the court in
support of the validity of Arizona's “especially cruel, heinous or
depraved” factor as limited and defined by case law, the prosecutor
argued: The MaynardFN7 situation is absolutely distinguishable from this
case ... in Arizona, not only does your Honor look at this case, make
that kind of proportionality review but our Arizona Supreme Court in
every single case makes the same kind of review. FN7. Maynard v.
Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988).
Defendant claims this argument runs afoul of Caldwell v. Mississippi,
472 U.S. 320, 328-29, 105 S.Ct. 2633, 2639, 86 L.Ed.2d 231 (1985). There
the United States Supreme Court stated: [I]t is constitutionally
impermissible to rest a death sentence on a determination made by a
sentencer who has been led to believe that the responsibility for
determining the appropriateness of the defendant's death rests elsewhere.
Caldwell is easily distinguishable. There, the
prosecutor told a sentencing jury that a death sentence is automatically
reviewable by the Supreme Court. Id. at 325-26, 105 S.Ct. at 2637-38.
This argument could be considered a plea for the jury to take its
responsibility for the death penalty less seriously. Here, the sentencer
is the judge. The judge is presumed to know the law. See Walton, 497 U.S.
639, 110 S.Ct. 3047 (1990) (when jury is sentencer, it is important that
it be instructed properly; judge-sentencer is presumed to know the law).
The prosecutor here was merely trying to show the judge how the Arizona
sentencing scheme differs from that at issue in Maynard. Obviously, the
state was not suggesting that the judge should abandon responsibility
for his decision.
Defendant also claims that the state's reference to
defendant's failure to call two psychological witnesses was
prosecutorial misconduct. Defendant retained experts to assess his
psychological condition. The trial judge knew this; indeed, he precluded
the state from interviewing the experts or discovering the results of
their examinations until and unless they testified, because of physician-patient
privilege. At sentencing, the prosecutor pointed out that the defendant
had not called the experts. This was not misconduct. State ex rel.
McDougall v. Corcoran, 153 Ariz. 157, 160, 735 P.2d 767, 770 (1987).
10. Presentence Report
Defendant argues that inadmissible information was
included in the presentence report. Specifically, defendant refers to
hearsay in the report and to references to his refusal to meet with the
probation officer. Defendant did not object in the trial court;
therefore, the issue is precluded on appeal absent fundamental error.
State v. Marquez, 127 Ariz. 3, 7, 617 P.2d 787, 791 (App.1980); see also
Van Den Berg, 164 Ariz. at 196, 791 P.2d at 1079 (failure to object to
closing argument precludes consideration on appeal absent fundamental
error). Where inadmissible material has been included in a presentence
report in a capital case, we have stated:
Absent proof to the contrary, the trial judge in a
capital case must be presumed to be able to focus on the relevant
sentencing factors and to set aside the irrelevant, the inflammatory,
and the emotional factors. State v. Beaty, 158 Ariz. 232, 244, 762 P.2d
519, 531 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d
708 (1989); see also Fierro, 166 Ariz. at 548, 804 P.2d at 81. Even if
the complained-of material was inadmissible, defendant has not shown
that the trial judge considered it and, hence, defendant has shown no
11. Arizona's Death Penalty Statute
Defendant makes a host of arguments challenging the
constitutionality of Arizona's capital sentencing scheme. We find no
merit in any of them. The great majority of defendant's arguments have
been resolved by the United States Supreme Court in Walton v. Arizona,
497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), or by previous
decisions of this court. Defendant has advanced no sufficient argument
why we should change our earlier rulings, and we decline to do so.
Defendant argues that the death penalty cannot be
imposed unless a jury, as opposed to a judge, determines whether
aggravating and mitigating circumstances exist, because aggravating and
mitigating factors are the functional equivalent of elements of the
crime. Walton rejects this contention. Id. at 647-50, 110 S.Ct. at
3054-55; see also State v. Correll, 148 Ariz. 468, 483-84, 715 P.2d 721,
736-37 (1986). Defendant, however, argues that the equal protection
clause also demands that a jury make the determination, because in
Arizona certain noncapital defendants are entitled to a jury
determination of sentence enhancement factors. See A.R.S. § 13-604(K).
Notwithstanding the fact that sentence enhancement and aggravation are
different, compare A.R.S. § 13-604(K) with A.R.S. §§ 13-702, 13-703,
this precise argument has also been rejected by the Ninth Circuit Court
of Appeals. See Clark v. Ricketts, 958 F.2d 851, 859 (9th Cir.1991),
cert. denied, 506 U.S. 838, 113 S.Ct. 117, 121 L.Ed.2d 73 (1992). We
agreed with the Ninth Circuit's position in State v. Landrigan, 176 Ariz.
1, 6, 859 P.2d 111, 116 (1993). See also State v. Spencer, 176 Ariz. 36,
45, 859 P.2d 146, 155 (1993); State v. Lopez, 175 Ariz. 407, 857 P.2d
Next, defendant argues that Arizona's death penalty
statute is unconstitutional because it does not sufficiently channel the
sentencer's discretion in imposing the death penalty. We rejected this
argument in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31
(1991). That the prosecutor has discretion to request the death penalty
does not alter this conclusion. See, e.g., State v. White, 168 Ariz.
500, 515, 815 P.2d 869, 884 (1991), cert. denied, 502 U.S. 1105, 112
S.Ct. 1199, 117 L.Ed.2d 439 (1992); Rossi, 146 Ariz. 359, 366, 706 P.2d
We have also previously dealt with and again reject
defendant's argument that Arizona's death penalty statute mandates that
the death sentence be imposed without considering whether death is the
appropriate penalty in an individual case. See Walton, 497 U.S. at
651-52, 110 S.Ct. at 3056; Vickers, 159 Ariz. at 543-44, 768 P.2d at
1188-89. We also find no merit in defendant's argument that Arizona's
death penalty statute is unconstitutional because it does not allow
consideration of mitigating factors that are not proved by the defendant
by a preponderance of the evidence. Walton, 497 U.S. at 649-52, 110 S.Ct.
We also reject defendant's argument that imposing the
death penalty is cruel and unusual punishment under article 2, section
XV of the Arizona Constitution. See White, 168 Ariz. at 515, 815 P.2d at
884. Further, we have previously rejected defendant's argument that the
death penalty has been applied in a discriminatory fashion in Arizona,
and we reject the argument once again. See id. at 513-14, 815 P.2d at
882-83 (death penalty must be decided on a case-by-case basis and, in
any event, defendant had produced no evidence of discriminatory intent);
see also Richmond, 136 Ariz. at 321-22, 666 P.2d at 66-67.
Defendant also contends that the death penalty
statute is unconstitutional because this court has not differentiated
adequately the meaning of “heinousness” and “depravity” under A.R.S. §
13-703(F)(6). This argument is without merit, and we reject it. See, e.g.,
Amaya-Ruiz, 166 Ariz. at 178, 800 P.2d at 1286; Fulminante, 161 Ariz. at
254, 778 P.2d at 619 (citing Ortiz, 131 Ariz. at 206, 639 P.2d at 1031)
(defining “heinous” to mean “hatefully or shockingly evil” and
“depraved” to mean “marked by debasement, corruption, perversion, or
deterioration,” with both referring to the defendant's state of mind at
the time of the crime). In sum, we find no merit in defendant's
arguments that Arizona's capital sentencing scheme is unconstitutional
under the state and federal constitution, and we reject them.
Finally, defendant urges us to conduct a
proportionality review and, based upon that review, to reduce his death
penalty to life imprisonment. Although this court, in every death
penalty case, independently considers and weighs aggravating and
mitigating circumstances, and has done so in this case, it does not
conduct comparative proportionality reviews. State v. Salazar, 173 Ariz.
at 416-17, 844 P.2d at 583-84.
We have considered the issues presented on appeal and
find that defendant's convictions are proper. We have conducted an
independent review of the defendant's death sentence and have
independently weighed the aggravating and mitigating factors applicable
thereto. We find the sentence appropriate. We have searched the record
for fundamental error pursuant to A.R.S. § 13-4035; Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and have found none.
We therefore affirm the convictions and sentences. FELDMAN, C.J., and
CORCORAN, ZLAKET, and MARTONE, JJ., concur.
West v. Ryan, 608 F.3d 477 (9th Cir. 2010).
Background: After defendant's state court convictions
for first degree murder, second degree burglary, and theft, and his
sentence of death, were affirmed, 176 Ariz. 432, 862 P.2d 192, he
petitioned for writ of habeas corpus. The United States District Court
for the District of Arizona, David C. Bury, J., 2007 WL 4240859, without
evidentiary hearing, denied defendant's petition, and granted defendant
certificate of appealability as to his claim of ineffective assistance
of counsel at sentencing. Defendant appealed.
Holdings: The Court of Appeals, Callahan, Circuit
Judge, held that: (1) defendant was diligent in pursuing his mental
impairments claim in state court, as required for evidentiary hearing on
defendant's habeas petition, but (2) defendant failed to raise colorable
claim that sentencing counsel's performance fell below an objective
standard of reasonableness, and thus defendant was not entitled to
evidentiary hearing on habeas petition. Affirmed.
CALLAHAN, Circuit Judge:
Thomas Paul West (“West”) appeals the district
court's denial, without an evidentiary hearing, of his claim of
ineffective assistance of sentencing counsel. We conclude that the
district court did not abuse its discretion in denying his claim without
a hearing and therefore affirm the judgment of the district court.
A. Murder and Trial
West moved to Arizona from Illinois in June 1987.
While living in Tucson with a family friend, he met Donald Bortle (“Bortle”).
Bortle had various items for sale in his home, including assorted
electronic equipment and videotapes of popular movies. West's friend
wanted to buy some things from Bortle, and West accompanied her to his
house. About two weeks later in mid-July 1987, West broke into Bortle's
home, beat him severely about the head, and bound his limbs. He left
Bortle to die, stealing his car and various other items, including
several pieces of electronic equipment.
West transported the stolen goods to the desert where
he hid them, and then drove to Glendale where some of his friends lived.
After retrieving the goods from Tucson with an acquaintance, West
returned to Glendale and spent a couple of days with his friends.FN1 He
made several allusions to beating up and robbing “some guy,” but
expressed no remorse about it. West then absconded to Illinois with much
of the stolen property. Soon thereafter, one of West's acquaintances
contacted the Pima County Sheriff's Office, and an investigation led
officers to Bortle's home where they discovered his dead and decaying
body. His hands and feet were bound with a vacuum cleaner cord and lamp
wire, and he had extensive fractures on the right side of his face. The
fractures were so severe that his hard pallet had detached from his
skull. The coroner estimated that he had bled to death within forty-five
minutes to an hour after the beating.
FN1. The record shows that West was buying and taking
large amounts of drugs around the time of the murder and immediately
thereafter. Defense counsel successfully excluded this evidence from
trial but introduced it during sentencing to establish the extent and
effects of West's substance abuse.
West was arrested in Illinois when the car in which
he was riding was stopped for speeding, and the officer discovered he
was wanted for murder in Arizona. A search of the car revealed several
pieces of electronic equipment and other items stolen from Bortle's home.
West was charged in Arizona state court with first degree murder, second
degree burglary, and theft. On July 27, 1987, the court appointed two
public defenders, Frank Dawley (“Dawley”) and Maddalena Fiorillo (“Fiorillo”),
to represent him. Soon after their appointment, they arranged for two
neuropsychologists, Dr. Overbeck and Dr. Allender, to evaluate West for
possible brain damage from substance abuse and purported head injuries.
Dr. Overbeck's report, if one was ever made, does not appear in the
record. As discussed in more detail below, Dr. Allender evaluated West
over a two-day period and concluded that the test results were “more
consistent with an individual of low educational status who may have
some evidence of a learning disability” than with a cognitive impairment.
It appears that no question was raised about West's
competency to stand trial, and following a week-long jury trial at which
West did not testify, the jury returned guilty verdicts on all three
The prosecution sought the death penalty, citing the
following aggravating factors: (1) the murder was committed for
pecuniary gain; (2) the murder was committed in an especially cruel and
heinous manner; and (3) West had a prior conviction for a crime of
violence (a 1981 manslaughter conviction). FN2. The record contains
conflicting information as to whether the conviction was for voluntary
or involuntary manslaughter.
At the initial sentencing hearing on May 4, 1988,
West's counsel argued that a conviction for felony murder precluded
imposition of the death penalty. Dawley indicated that, as “a matter of
strategy,” he and Fiorillo chose to rely solely on this “legal argument”
and not to present mitigation witnesses. Dawley said that they had
looked for mitigating factors, explaining that West had been “examined”
from “a mental health standpoint,” but that he and Fiorillo had
determined that the evidence “was not worth bringing” to the court.
The judge disagreed with the defense's legal theory
that the death penalty could not be imposed for a felony murder
conviction and asked West if there was anything he wished to say prior
to sentencing. West indicated that there were a lot of people who would
testify that he was not a “wicked mad man,” but that he did not feel
like “dragging them in” because he felt the court had already made up
its mind. The court responded that it would consider any such evidence
and would delay sentencing so that West could present it. West agreed,
and the court rescheduled the hearing for June 6.
On May 11, Dawley sought and obtained another
continuance, delaying the sentencing hearing until August 1. During the
interim, defense counsel sent two investigators to Illinois and Oklahoma
to interview thirteen witnesses about West's childhood, drug addiction,
and the circumstances surrounding the earlier 1981 homicide. Counsel
also retained a substance abuse expert, Terry Hickey (“Hickey”), who
interviewed West, West's mother, his brother, and LuAnn St. Aubin (West's
girlfriend at the time of the 1981 homicide). Hickey reviewed the
transcripts of the interviews with West's family and friends, as well as
West's Illinois prison records, his medical records, and Dr. Allender's
Meanwhile, the probation office submitted an amended
presentence report (“PSR”), which described positive letters from West's
father, grandmother, maternal aunt, and a family friend. The letter from
West's father stated that West was well-liked and that drugs and alcohol
were “the bottom line to all of [his] problems.” Other letters opined
that West needed drug treatment and that he was a good person when he
was not using drugs. The PSR took note of the numerous interviews
conducted by the defense investigators and advised the court to consider
that West's actions may have been the result of chronic and acute drug
abuse, which may have reduced his ability to appreciate the wrongfulness
of his actions. It also opined that West's actions may have resulted
from an unstable and abusive home environment.
In its pre-hearing sentencing brief, the defense
argued that West (1) had an emotionally deprived childhood, (2) suffered
from substance abuse, which diminished his capacity to conform his
conduct to social and legal norms, (3) could be rehabilitated, (4) did
not intend to kill Bortle, (5) could not legally be put to death for
felony murder, and (6) had acted in self-defense and defense of another
in connection with his 1981 homicide conviction.
At the August 1 sentencing hearing, Hickey and five
lay witnesses testified on West's behalf. The defense also submitted
newspaper articles about the 1981 homicide, hospital records from West's
drug-related hospitalizations in 1983 and 1986, a rap sheet from the
Department of Justice, and transcripts of interviews with thirteen
witnesses who discussed the extent of West's substance abuse, his
emotionally deprived childhood, and/or the circumstances surrounding the
1981 homicide. FN3. LuAnn St. Aubin and Mike Richmond, both of whom
witnessed the 1981 homicide, testified that the victim was a violent
drug dealer who had been terrorizing people at a party and was
participating in an attack on St. Aubin when West shot him. Although St.
Aubin testified at the sentencing hearing that the victim had pulled a
gun on West, she did not offer such testimony during the manslaughter
trial, and Richmond provided a contrary account. According to Richmond,
when West pointed a gun at the victim, the victim taunted him by saying
he “didn't have the balls” to pull the trigger. West then shot him.
Hickey testified that West came from a chemically
dependent family, that West's chemical dependency began at age ten, and
that it significantly impaired his judgment. He testified that addicts
cannot reason normally and that they make increasingly bad decisions as
their addiction progresses. He testified that extreme addictions cause
“cognitive impairment[s]” similar to brain damage.
With regard to West's family, Hickey testified that
West's father was an alcoholic and that West witnessed physical violence
in the family from an early age. Hickey noted that West's father
withdrew affection and refused to call the children by their names,
calling them “pothead number one” and “pothead number two.” On cross-examination,
Hickey admitted that West's prognosis was poor, noting that West had
dropped out of treatment programs in 1983 and 1986, but explaining that
it is not uncommon for addicts to fail such programs on their first
At the close of evidence, West made a lengthy
statement in which he denied any responsibility for the crime. The
sentencing court found three aggravating circumstances: (1) that West
previously committed a felony involving the use of violence upon another,
(2) that West committed the present offense in expectation of pecuniary
gain, and (3) that West committed the present offense in an especially
cruel and heinous manner, in that, A, the [victim] was hogtied, bound
and beaten repeatedly; B, death was not immediate, the deceased was left
dying and in a position unable to seek assistance; and C, that the
defendant knew or had reason to know that the deceased was dying or had
suffered serious physical injuries.
The court found West's emotionally deprived childhood
and substance abuse problem to be mitigating, but not sufficiently so as
to outweigh the aggravating factors. It sentenced West to death.
C. State Post-Conviction Proceedings
West appealed his conviction and sentence to the
Arizona Supreme Court, which affirmed both in a published opinion on
September 30, 1993. State v. West, 176 Ariz. 432, 862 P.2d 192 (1993).
Prior to filing his petition for post-conviction relief, West filed a
request in Pima County Superior Court for the appointment of a mental
health expert, a pharmacologist, and an investigator to help prepare his
petition. FN4 At the hearing on this motion, West's counsel, Carla Ryan
(“Ryan”), stated that she sought a mental health expert because West had
recently “taken a turn for the worse” and was writing “gibberish.” She
said nothing about West's purported mental impairments or evidence that
trial counsel allegedly failed to present at sentencing. The court
granted the motion as to the investigator but denied funds for a mental
health expert or pharmacologist, indicating that it would reconsider if
Ryan could present more specific information about the need for such
experts. FN4. In addition to other claims, West alleged that someone
else had murdered Bortle, and he sought assistance in investigating this
theory. West does not advance this theory in the present appeal.
West filed his petition for post-conviction relief in
Pima County Superior Court on March 15, 1996. He raised numerous claims,
including ineffective assistance of counsel at sentencing. On March 26,
1996, Ryan again requested funding for experts and discovery and
specifically sought funds for a formal consultation with Dr. Thomas
Thompson, a psychiatrist with whom she had discussed West's case, and
who allegedly told her that testing could be done to explore West's
“possible epileptic seizures leading to blackouts.” FN5 It is unclear
whether or not the trial court ruled on this request before West filed a
motion for an evidentiary hearing on July 17, 1996. The bulk of this
motion sought a hearing on issues not relevant to the present appeal,
but it also alleged that trial counsel failed to have Drs. Allender and
Overbeck perform brain scans and other tests on West, and that without
such tests “there [was] no way to know exactly what potential mitigation
could have been presented.” The superior court denied the petition
without an evidentiary hearing. FN5. West does not allege in this appeal
that counsel failed to explore an alleged “seizure-related impairment.”
Other than a single notation in a 1983 hospital record indicating that
West claimed to have had a seizure from a drug overdose years earlier,
there is no evidence that he suffered from seizures.
In a motion for reconsideration, Ryan-for the first
time-supported her request for funding and an evidentiary hearing with
an affidavit. Ryan's affidavit recounted her conversation with Dr.
Thompson, who believed West might benefit from further neurological
testing. The court denied the motion and West filed a petition for
review with the Arizona Supreme Court. Among other claims of error, he
challenged the denial of his requests for an evidentiary hearing and
expert funding. The Arizona Supreme Court summarily denied the petition.
D. Federal Habeas Proceedings
On May 6, 1998, West filed a timely petition for a
writ of habeas corpus in district court, raising thirty-two claims. It
included a claim for ineffective assistance of sentencing counsel based
on the alleged failure to investigate and present “valid mental health
mitigation,” including evidence of head injuries, “continual[ ]”
psychiatric counseling, and a “possible” cognitive impairment. West also
alleged that counsel performed deficiently by failing to present Dr.
Allender's report at sentencing. West asked for “an opportunity to
present his arguments in an evidentiary hearing” after allowing him time
“to investigate, hire experts, and properly prepare.”
The district court denied West's penalty phase
ineffective assistance of counsel claim on the merits without a hearing.
It reasoned that counsel's strategy at sentencing was to focus on the
damaging effects of Petitioner's dysfunctional childhood and long-term
addiction to drugs and alcohol and to emphasize that Petitioner was
basically a good person who with the proper help could be rehabilitated.
This was a sound strategy, and Petitioner has offered no support for the
proposition that emphasizing evidence of cognitive impairments due to
head injuries-if such evidence existed-would probably have led to a
In denying West's request for an evidentiary hearing,
the district court assumed without deciding that West had been diligent
in seeking a hearing in state court, but held that a hearing was
unnecessary because the record “clearly show[ed] that counsel presented
a strong case in mitigation based on a thorough investigation of
Petitioner's background.” Further, the district court reasoned that “a
review of the entire record indicate[d] that the facts now alleged by
Petitioner, even if proved true, would not entitle him to relief on this
The district court granted West a certificate of
appealability as to his claim of ineffective assistance of counsel at
sentencing. On appeal, West argues that the district court erred in
denying this claim without first granting him an evidentiary hearing.
We review the district court's denial of a habeas
petitioner's request for an evidentiary hearing for abuse of discretion.
Schriro v. Landrigan, 550 U.S. 465, 468, 127 S.Ct. 1933, 167 L.Ed.2d 836
(2007); Earp v. Ornoski, 431 F.3d 1158, 1166 (9th Cir.2005).
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), which governs this case, prohibits an evidentiary
hearing where a petitioner has not been diligent in pursuing his claims
in state court. 28 U.S.C. § 2254(e)(2); Williams v. Taylor, 529 U.S.
420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). “Diligence ... depends
upon whether the prisoner made a reasonable attempt, in light of the
information available at the time, to investigate and pursue claims in
state court,” and requires “in the usual case that the prisoner, at a
minimum, seek an evidentiary hearing in state court in the manner
prescribed by state law.” Id. at 435, 437, 120 S.Ct. 1479. “We review de
novo whether,” due to a lack of diligence, AEDPA “removes from the
district court's discretion the decision to grant or deny a request for
an evidentiary hearing.” Baja v. Ducharme, 187 F.3d 1075, 1077 (9th
Although respondent contends that AEDPA precluded an
evidentiary hearing in district court due to West's lack of diligence in
state court, the record reveals West's persistent, though imperfect,
efforts to obtain a hearing. We acknowledge that many of his requests
for an evidentiary hearing concerned other theories of relief and
otherwise failed to specify the “mental impairment” evidence that trial
counsel allegedly failed to investigate.FN6 We also note that, contrary
to the requirements of Arizona Rule of Criminal Procedure 32.5, West
failed to support his requests for a hearing with sworn affidavits.FN7
FN6. Because trial counsel and sentencing counsel
were the same, we use these terms interchangeably. FN7. Arizona Rule of
Criminal Procedure 32.5 provides, in relevant part: “Facts within the
defendant's personal knowledge shall be ... under oath. Affidavits,
records, or other evidence currently available to the defendant
supporting the allegations of the petition shall be attached to it.”
However, despite these deficiencies, the record shows
that West sought a hearing and funding for experts on more than one
occasion in an effort to develop his claim that he suffered from
mitigating mental impairments. Cf. Bragg v. Galaza, 242 F.3d 1082, 1090
(9th Cir.2001) (concluding that AEDPA prohibited a remand for an
evidentiary hearing where petitioner never sought a hearing in state
court). Accordingly, we, like the district court, assume that West was
diligent for purposes of AEDPA. FN8. We reject respondent's contention
that West “abandoned” his “mental impairment claim” in district court.
Although West's request for an evidentiary hearing in district court
focused on other issues, he nonetheless made specific allegations
concerning ineffective assistance of sentencing counsel, and he arguably
sought to develop that issue at a hearing. Even though he did not
request funds for mental health experts in district court, respondent
cites no law holding that such a failure is tantamount to abandonment of
B. No Abuse of Discretion in Declining to Hold a
1. Governing Standards
To obtain an evidentiary hearing in district court, a
habeas petitioner must, in addition to showing diligence in state court,
allege a colorable claim for relief. See Landrigan, 550 U.S. at 474-75,
127 S.Ct. 1933; Earp, 431 F.3d at 1167. To allege a colorable claim, he
must allege facts that, if true, would entitle him to habeas relief.
Landrigan, 550 U.S. at 474, 127 S.Ct. 1933. Thus, “[i]n deciding whether
to grant an evidentiary hearing, a federal court must consider whether
such a hearing could enable an applicant to prove the petition's factual
allegations,” and whether those allegations, if true, would entitle him
to relief. Id. “[I]f the record refutes the applicant's factual
allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” Id. Furthermore, because
AEDPA's deferential standards “control whether to grant habeas relief, a
federal court must take into account those standards in deciding whether
an evidentiary hearing is appropriate.” Id.; see also Earp, 431 F.3d at
Under the familiar AEDPA standard, a federal court
may not grant “habeas relief unless a state court's adjudication of a
claim ‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,’ or the relevant
state-court decision ‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’
” Landrigan, 550 U.S. at 473, 127 S.Ct. 1933 (quoting 28 U.S.C. §
2254(d)) (internal citations omitted).
The relevant Supreme Court law governing West's
penalty phase ineffective assistance of counsel claim is Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To
establish a colorable claim of ineffective assistance of counsel, a
petitioner must satisfy Strickland's two-pronged test by showing that
(1) “counsel's representation fell below an objective standard of
reasonableness” and (2) there is a “reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have
been different.” Id. at 687-88, 694, 104 S.Ct. 2052; see also United
States v. Thomas, 417 F.3d 1053, 1056 (9th Cir.2005) (reciting “the
familiar, two-part test of Strickland ”).
“Judicial scrutiny of counsel's performance must be
highly deferential,” and courts “must indulge a strong presumption that
counsel's conduct falls within the wide range of reason able
professional assistance....” Strickland, 466 U.S. at 689, 104 S.Ct.
2052. Thus, “counsel is strongly presumed to have ... made all
significant decisions in the exercise of reasonable professional
judgment.” Id. at 690, 104 S.Ct. 2052. Furthermore, the Supreme Court
has recently reiterated that “because the Strickland standard is a
general standard, a state court has even more latitude to reasonably
determine that a defendant has not satisfied that standard.” Knowles v.
Mirzayance, --- U.S. ----, 129 S.Ct. 1411, 1420, 173 L.Ed.2d 251 (2009).
2. No Colorable Claim under the First Prong of
Applying the deferential AEDPA and Strickland
standards to the present case, we conclude that the district court did
not abuse its discretion in denying West's claim without an evidentiary
hearing. Although the state court did not explain its reasons for
denying West's claim of ineffective assistance of sentencing counsel,
our independent review of the record compels us to conclude that its
decision on this issue was reasonable. See Richter v. Hickman, 578 F.3d
944, 951 (9th Cir.2009) (en banc), cert. granted sub nom. Harrington v.
Richter, --- U.S. ----, 130 S.Ct. 1506, 176 L.Ed.2d 108 (2010). Moreover,
the district court did not abuse its discretion in denying West's claim
without an evidentiary hearing because West failed to raise factual
disputes that, if decided in his favor, would present a colorable claim
under the first prong of Strickland.
First, we reject West's contention that counsel's
initial reliance on an erroneous legal theory, and the allegedly
resultant delay in investigating mitigating evidence, constituted
deficient performance. Although West argues that counsel's initial
reliance on the “felony murder” argument delayed the investigation until
after trial, the record shows that counsel acted promptly to investigate
possible mitigation defenses. Counsel were appointed in late July 1987,
and by September they had arranged for an evaluation by Dr. Overbeck.
Soon thereafter, counsel retained Dr. Allender to evaluate West for
possible cognitive impairments resulting from purported head injuries
and alcohol abuse. At the initial sentencing hearing, Dawley indicated
that the evaluations had been conducted for purposes of mitigation, but
that he and his co-counsel ultimately found them unsupportive.
Accordingly, it is clear that counsel promptly made appropriate
mitigation inquiries and did not wait until after trial to begin their
FN9. West argues that counsel did not comply with the
1989 ABA Guidelines for the Appointment and Performance of Counsel In
Death Penalty Cases, which exhort counsel to launch a full-scale
mitigation investigation immediately after appointment. However, the
Supreme Court has held that the ABA guidelines are “only guides,” and
may only be relevant to the extent they reflect prevailing norms at the
time of counsel's performance. Bobby v. Van Hook, --- U.S. ----, 130
S.Ct. 13, 17 & n. 1, 175 L.Ed.2d 255 (2009) (per curiam). Under Van Hook,
the 1989 guidelines are inapplicable to the present case since they did
not come into effect until after West's trial. Id.
Furthermore, any delay between counsel's initial
mitigation investigation and their subsequent post-trial investigation
was immaterial. Despite counsel's initial reliance on an unavailing
legal argument regarding the applicability of the death penalty to West,
the record shows that, after the trial court rejected that argument,
counsel capably used multiple extensions of time to marshal a
substantial amount of mitigating evidence concerning West's substance
abuse, his family background, and the extenuating circumstances
surrounding his prior homicide conviction. During the nearly three
months between the initial sentencing hearing and the August 1 hearing,
counsel sent investigators out of state to interview thirteen different
witnesses; they gathered records from West's multiple Illinois
incarcerations and information about his 1981 conviction; they solicited
letters from West's family and friends; and, they retained a substance
abuse expert who conducted a thorough review of West's background.
Counsel presented all of this evidence to the sentencing judge, and
counsel then effectively used Hickey's testimony to establish the
severity of West's substance abuse and to suggest that it resulted in
problems similar to those caused by a cognitive impairment.
Given counsel's considerable and productive efforts
during this time period, we cannot say that any delay caused by their
initial approach amounted to constitutionally deficient performance.
Moreover, West fails to explain how an evidentiary hearing would allow
him to establish ineffective assistance of counsel regarding this aspect
of their representation.
We likewise reject West's contention that counsel
performed deficiently by failing to provide Dr. Allender with a more
complete picture of his family, prison, and social background prior to
the evaluation and by failing to follow up on purported “red flags” in
the subsequent report. West relies on the pre-AEDPA case of Caro v.
Woodford, 280 F.3d 1247 (9th Cir.2002), to argue that counsel should
have given Dr. Allender more extensive information about his background
prior to the evaluation. However, unlike counsel in Caro, who were aware
of the petitioner's “extraordinary history of exposure to pesticides and
toxic chemicals” yet failed to inform the experts who examined him of
these facts, see id. at 1254, here, there is no indication that, at the
time of Dr. Allender's examination, counsel knew about West's dismal
family background or that such information would have been relevant to
an examination exploring a suspected “organic impairment.” Indeed,
during his evaluation, West downplayed the emotional abuse he suffered
as a child, and there is no indication that he had been more forthcoming
with counsel. Moreover, the record indicates that West did, in fact,
provide Dr. Allender with information relevant to his psychiatric and
social history. For example, he told Dr. Allender that he did not
complete seventh grade, had received counseling in Illinois state prison,
and had begun using drugs at an early age and continued to use them.
Thus, there is no evidence that counsel's actions somehow impeded Dr.
Allender's ability to perform a thorough neuropsychological
FN10. West attempts to prove otherwise by submitting
for the first time in this appeal a letter written by Dr. Allender in
2008-more than twenty years after his initial evaluation of West in
1987. Even were we to over-look the tardiness of this evidence, it does
not establish deficient performance with respect to Dr. Allender's
evaluation. In the letter, Dr. Allender indicates only that, had he
known the extent of West's abusive childhood, he would have done
“additional questioning” and “may have” diagnosed West with post-traumatic
stress syndrome, which he opined “may have helped the judge to
understand the source of Mr. West's drinking and drug problems” and
difficulty staying in treatment. These equivocal statements fail to
undermine the state court's conclusion that sentencing counsel provided
constitutionally sufficient performance.
Furthermore, contrary to West's assertions, there
were no “red flags” that counsel overlooked in Dr. Allender's report.
Although the report mentioned that West had been given psychoactive
medication upon his initial incarceration, it also noted that West was
no longer taking the medication, that his thinking had cleared, and that
he was currently relying only on Tryptophan for sleep. West has never
submitted affidavits or other evidence indicating that this brief period
of medication was for treatment of something other than detoxification
or aid in sleeping. Further, although West told Dr. Allender that he was
currently depressed and had suicidal thoughts, he said nothing to
suggest a history of mental illness that might be relevant to mitigation.
Cf. Rompilla v. Beard, 545 U.S. 374, 391-93, 125 S.Ct. 2456, 162 L.Ed.2d
360 (2005) (finding deficient performance where counsel failed to
examine files related to petitioner's prior convictions, which indicated
he suffered from schizophrenia and other disorders); Lambright v.
Stewart, 241 F.3d 1201, 1207 (9th Cir.2001) (remanding for an
evidentiary hearing where counsel failed to obtain a psychiatric
evaluation despite his awareness of evidence indicating petitioner's
hospitalization in a mental facility and two prior suicide attempts);
Earp, 431 F.3d at 1177-78 (remanding for an evidentiary hearing where
counsel failed to do follow-up investigation of records indicating that
petitioner had a history of troubled mental health).
Indeed, the record shows that West's “history” of
psychiatric treatment was situational and unremarkable. Records from one
period of imprisonment in Illinois indicate that he had a few visits
with a psychologist, but that the psychologist's primary diagnosis was
“substance abuse.” The same records mention possible “secondary” and
“third” diagnoses of borderline personality disorder and “learning
disability,” respectively, but also note that West's intellect was not
impaired, his insight and judgment were good, and that previous
blackouts and amnesic attacks were from excessive drug use. Another
record from a different period of incarceration shows that West talked
to a psychologist when he was depressed about relationship problems with
his girlfriend. These records, far from casting doubt on the
reasonableness of counsel's performance, support their decision to focus
on West's substance abuse as a primary mitigation factor.
Similarly, Dr. Allender's report, rather than
revealing alleged deficits in “intellectual memory, language and
perceptual functioning” as West contends, indicates that West had normal
performance in those areas. Further, contrary to West's contention that
counsel ignored the report's mention of his purported head injuries, the
record shows that it was counsel who retained Dr. Allender in the first
instance to evaluate whether the alleged injuries affected his
neuropsychological functioning. Not incidentally, the record does not
support West's claims of having suffered numerous head injuries, and
West has never submitted any evidence to create a material factual
dispute on this issue.FN11 Dr. Allender, however, accepted West's
contentions as true, but nonetheless concluded that the “results ... [of
the evaluation were] more consistent with an individual of low
educational status who may have some evidence of a learning disability”
than with any cognitive impairment resulting from head injuries or
FN11. West told Dr. Allender that he tripped while
running, fell on his head, and ruptured his spleen, but his 1983
hospital records indicate that his splenectomy was the result of a car
accident. Further, West's claim about being thrown on his head while in
Illinois state prison is inconsistent with the related medical records.
Contrary to West's assertion that he could not move one side of his body
after this incident and that the prison hospital wanted to admit him,
the medical records indicate that West could move all of his extremities,
had normal x-rays, and left the emergency room in fair condition with
follow-up to be provided “as needed.”
The only arguably abnormal finding by Dr. Allender
was that West's right hand was “somewhat” slow and “did not demonstrate
the expected right hand advantage.” Based on this finding, Dr. Allender
commented that a cognitive impairment could not be “ruled out” absent
further testing. However, such an equivocal finding, in light of his
ultimate conclusion that the test results were more consistent with
someone of a “low educational status” than with a cognitive impairment,
is not the kind of “powerful mitigating evidence” sufficient to overcome
Strickland's presumption that counsel acted reasonably in declining to
investigate further the possibility that West might suffer from a
cognitive impairment. See Van Hook, 130 S.Ct. at 19 (citing Rompilla,
545 U.S. at 389-93, 125 S.Ct. 2456).
In the same vein, it was not objectively unreasonable
for counsel not to introduce Dr. Allender's underwhelming report at
sentencing. At the initial sentencing hearing, counsel indicated that
they did not believe the report was “worth” bringing to the court's
attention. This was a reasonable strategic decision as Dr. Allender
concluded that West did not have any impairments. Counsel also acted
reasonably by declining to present the report at the second hearing
because doing so would have risked undermining Hickey's testimony that
severe addiction can result in cognitive impairments and actual brain
damage. Indeed, Hickey, a “substance abuse expert,” was able to offer
such an opinion without the risk of impeachment that Dr. Allender would
have faced. In other words, if Dr. Allender had testified that West's
cognition was impaired, the prosecution surely would have impeached such
testimony with his contrary written report. Furthermore, even if defense
counsel had just introduced the report, the prosecution could have used
it to impeach Hickey's testimony that severe addiction could result in
For these same reasons we reject West's contention
that counsel performed deficiently by retaining Hickey rather than a
true “mental health” expert. The record shows that Hickey presented
persuasive testimony about the links between West's childhood, his
substance abuse, and its effects on his judgment. West fails to explain
how a “mental health expert” could have offered more compelling evidence,
especially when there was no evidence that he actually suffered from a
As the Supreme Court recently emphasized in Van Hook,
“the Federal Constitution imposes one general requirement: that counsel
make objectively reasonable choices.” 130 S.Ct. at 17 (quoting Roe v.
Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985
(2000)). Here, the record shows that, in light of Dr. Allender's
underwhelming evaluation, counsel reasonably chose not to investigate
further the possibility that West suffered from a cognitive impairment
and to focus instead on West's long-standing substance abuse and his
dysfunctional family background. Counsel made efficient use of a nearly
three-month extension of time to marshal numerous witnesses and an
expert to testify in support of these factors. They also ably presented
evidence of the extenuating circumstances surrounding his prior
manslaughter conviction. Cf. Williams, 529 U.S. at 395, 120 S.Ct. 1495 (finding
deficient performance where counsel began mitigation investigation one
week prior to trial and failed to uncover extensive records graphically
describing petitioner's nightmarish childhood); Allen v. Woodford, 395
F.3d 979, 1002 (9th Cir.2005) (finding deficient performance where
counsel had only one week in which to prepare the witnesses and evidence,
contacted only a few of more than twenty-six potential witnesses, and
failed to request a continuance).
West has failed to cite any potentially powerful
mitigating evidence that counsel overlooked, nor has he raised any
factual disputes regarding counsel's performance that require resolution
in an evidentiary hearing, and that, if decided in his favor, would
entitle him to relief.FN12 Accordingly, we conclude that West has failed
to raise a colorable claim of deficient performance under the first
prong of Strickland, and therefore, we do not reach the second,
“prejudice” prong of the Strickland analysis.FN13 Thus, based on our
independent but deferential review of the record, we conclude that it
was not unreasonable for the state court to deny West's penalty phase
claim of ineffective assistance of counsel and that the district court
did not abuse its discretion in denying that claim without an
FN12. For the first time on appeal, West submits a
2008 letter from Dr. Richard M. Kolbell, Ph.D., who opines that West has
“episodic dyscontrol” (an impulse control disorder characterized by
periods of rage and violent behavior) and Attention-Deficit/Hyperactivity
Disorder. Dr. Kolbell opines that both conditions have a “prominent
organic basis,” and that it would have been “reasonable” to explore
these at the time of West's trial and sentencing. Even overlooking the
tardiness of this new evidence, it nonetheless fails to establish West's
entitlement to an evidentiary hearing, as it is speculative in nature
and does not establish deficient performance. These diagnoses were not
obvious from the record at the time of sentencing, and the episodic
dyscontrol diagnosis would have been inconsistent with presenting West
as non-violent and the murder as accidental.
FN13. To the extent that West seeks a hearing in
order to develop “new” mitigating evidence in the first instance, AEDPA
prohibits such proceedings. See Williams, 529 U.S. at 437, 120 S.Ct.
1479 (explaining that “[f]ederal courts sitting in habeas are not an
alternative forum for trying facts and issues” that were not developed
in state proceedings).
The present record, when viewed through the
deferential lenses of AEDPA and Strickland, does not support West's
claim that counsel failed to provide effective assistance at sentencing.
West has pointed to no potentially powerful mitigating evidence that
counsel overlooked or failed to develop, nor has he alleged facts that,
if decided in his favor, would establish a colorable claim under the
first prong of Strickland. Accordingly, there is nothing to be
determined in an evidentiary hearing, and the district court did not
abuse its discretion by denying his claim without one. AFFIRMED.