State v. Superior Court of State of Ariz., In and For Pima County

• Decision Date: 31 March 1981
• Docket Number: No. 15207,15207
• Citation: 128 Ariz. 583,627 P.2d 1081
• Parties: STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF the STATE OF ARIZONA, IN and FOR the COUNTY OF PIMA, and the Honorable William E. Druke, Judge of the Superior Court, Division XI, Respondent, and Douglas Edward Gretzler, Real Party in Interest.
• Court: Arizona Supreme Court

Page 1081

627 P.2d 1081

128 Ariz. 583

STATE of Arizona, Petitioner, v. The SUPERIOR COURT OF the STATE OF ARIZONA, IN and FOR the COUNTY OF PIMA, and the Honorable William E. Druke, Judge of the Superior Court, Division XI, Respondent, and Douglas Edward Gretzler, Real Party in Interest.

No. 15207.

Supreme Court of Arizona, In Banc.

March 31, 1981.

Rehearing Denied May 12, 1981.

Stephen D. Neely, Pima County Atty. by David G. Dingeldine, Lynne A. Gallagher, Deputy County Attys., Tucson, for petitioner.

Hoffman & Brown by David S. Hoffman, Tucson, for real party in interest.

CAMERON, Justice.

This special action challenges a ruling on a motion in limine by the Pima County Superior Court, precluding the State from using the defendant's nine California murder judgments as aggravating circumstances under the Arizona death penalty statute, A.R.S. § 13-703. We accepted jurisdiction because of the punishment involved, because there was no plain, adequate, or speedy remedy by appeal, and to prevent what we perceived to be a misapplication of the law. We have jurisdiction pursuant to Article 6, § 5 of the Arizona Constitution and Rule 3(c), Rules of Procedure for Special Actions, 17A A.R.S.

We must determine only one issue: Were the nine California judgments of guilt void and therefore inadmissible for enhancement of sentence in Arizona?

The facts necessary for a determination of this matter are as follows. Douglas Gretzler, defendant, and Willie Luther Steelman were responsible for the deaths of Michael and Patricia Sandberg in Tucson, Arizona, on 3 November 1973. A factual statement of defendant's conduct is contained in State v. Gretzler, 126 Ariz. 60, 612 P.2d 1023 (1980). Later, nine persons were killed by the same pair in San Joaquin County, California. On 8 November, Gretzler was arrested in California, and a California attorney was immediately appointed to represent him. On 6 June 1974, the defendant changed his plea from not guilty to guilty before Judge Papas in the San Joaquin County Superior Court of the State of California. The plea was a result of a plea bargain in which six other charges were dismissed including one charge of kidnapping which carried a potentially greater punishment than the murders to which defendant pled guilty.

Before accepting the defendant's guilty pleas, Judge Papas explained the charges and elements of first degree murder and advised the defendant that certain constitutional rights were waived when a guilty plea is entered. The proceeding at which defendant pled guilty appears to have complied with the procedure required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Toward the end of the proceeding the following transpired:

"THE COURT: Now, Mr. Gretzler, and Mr. Dedekam, if it has been explained to you, all right, but if not, I would like to explain to you, that you understand that the pleas you have entered in this proceeding, of course, will not affect any other charge or charges which may be pending in any other jurisdiction? You understand that?

"DEFENDANT GRETZLER: Yes.

"THE COURT: This only takes care of the matters that are before this court in this county.

"DEFENDANT GRETZLER: That means they do not affect either way?

"THE COURT: That's right. That's correct. It has nothing to do with any other proceeding which may or has been initiated. Excuse me. I have been advised by counsel there is some proceeding in another state. And there's some proceeding in one or two other counties. Now I am not certain of that. But you understand, of course, whatever action is taken here, and your plea here does not affect those proceedings at all. You understand that?

"DEFENDANT GRETZLER: Right. I understand that."

After sentencing in California, defendant was extradited to Arizona to stand trial for the Sandberg murders. Defendant was convicted of first degree murder, and following an aggravation-mitigation hearing, at which time the nine California convictions were introduced as aggravating circumstances under Arizona's death penalty statute, A.R.S. § 13-454(E)(1), (2) (presently A.R.S. § 13-703), the defendant was sentenced to death by the Pima County Superior Court. Appeal to this court followed, and we remanded the case for resentencing pursuant to State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979); State v. Gretzler, supra.

Prior to resentencing, the defendant filed a motion in limine and a motion under Rule 32, Rules of Criminal Procedure, 17 A.R.S., to preclude the State from introducing the California convictions as aggravating circumstances. Defendant alleged that he was misled by Judge Papas into believing that the guilty pleas would not affect other proceedings when, in fact, they directly affected sentencing in Arizona. The Pima County Superior Court, Judge W. E. Druke granted the defendant's motion in limine and indicated that the California convictions would not be used as aggravating circumstances in resentencing. The State filed a petition for special action in this court.

MOTION "IN LIMINE"

In criminal cases, a motion in limine is treated as a motion to suppress, and the ruling of the trial court will not be disturbed on appeal absent a clear abuse of discretion. State v. Dupuy, 116 Ariz. 151, 568 P.2d 1049 (1977); State v. Wright, 125 Ariz. 36, 607 P.2d 19 (App.1979). While motions to suppress are generally filed between the time of arraignment and trial in order to exclude evidence at trial, Rule 16, Rules of Criminal Procedure, 17 A.R.S., our criminal code, in A.R.S. § 13-703, requires the trial judge to hold a presentence hearing following a conviction of first degree murder to determine the existence of aggravating and mitigating circumstances. We believe that a motion in limine before sentencing should be treated in the same manner as a motion to suppress before trial, and the same standard of review will be applied. State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980).

ARE THE CALIFORNIA JUDGMENTS VOID?

The defendant asserts that the guilty pleas which resulted in the California convictions were involuntary because he was misled as to their consequences. Defendant testified at the hearing before the Pima County court that he did not know that Arizona had the death penalty, that he had not discussed the matter with his attorney, and did not know the consequences, in Arizona, of his pleas in California. He further testified that he would not have pled guilty in California had he known the convictions could be used to impose the death penalty in Arizona.

There was sufficient evidence from which it could be found by the trial court that at the time of sentencing in California, the defendant was confused, if not misled, as to the effect of his guilty pleas in California upon the imposition of the death penalty in Arizona, should he later be convicted of the charges which were then pending before the Arizona courts. The record indicates that defendant challenged the validity of the California pleas and the resulting judgments of guilt in the California courts, and he has been unsuccessful in having them set aside.

A void conviction may not be used to enhance an individual's punishment in a later sentencing. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The judgment in Burgett was void because the record did not affirmatively show that the defendant was represented by counsel at the time of the prior felony judgment. Likewise, the Fifth Circuit recently held that because a prior felony judgment was obtained as a result of an involuntary confession, the judgment was...