690 P.2d 755 (Ariz. 1984), 4624-2, State v. Tison

Docket Nº:4624-2-PC.
Citation:690 P.2d 755, 142 Ariz. 454
Opinion Judge:[10] Hays
Party Name:STATE of Arizona, Appellee, v. Raymond Curtis TISON, Appellant.
Attorney:[7] Robert K. Corbin, Atty. Gen. by Bruce M. Ferg and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee. [8] Kemper & Henze, by James Hamilton Kemper, Phoenix, for appellant.
Case Date:October 18, 1984
Court:Supreme Court of Arizona
 
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Page 755

690 P.2d 755 (Ariz. 1984)

142 Ariz. 454

STATE of Arizona, Appellee,

v.

Raymond Curtis TISON, Appellant.

No. 4624-2-PC.

Supreme Court of Arizona.

October 18, 1984

In Banc.

Page 756

[142 Ariz. 455] Robert K. Corbin, Atty. Gen. by Bruce M. Ferg and David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Kemper & Henze, by James Hamilton Kemper, Phoenix, for appellant.

HAYS, Justice.

Petitioner, Raymond Tison, was convicted of four counts of first degree murder, two counts of armed robbery, three counts of kidnapping and one count of theft of a motor vehicle. Petitioner was sentenced to death for each first degree murder conviction. On direct appeal, this court affirmed all the judgments of conviction and sentences. See State v. (Raymond) Tison, 129 Ariz. 546, 633 P.2d 355 (1981). The superior court subsequently denied a petition for post-conviction relief and a motion [142 Ariz. 456]

Page 757

for rehearing. See 17 A.R.S. Arizona Rules of Criminal Procedure, rule 32. Petitioner then petitioned this court for review of the superior court's decision. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and rule 32. Relief is denied.

The facts of this case are set forth in our decision on direct appeal, see (Raymond) Tison, supra, and in the companion case, State v. (Ricky) Tison, 129 Ariz. 526, 633 P.2d 335 (1981). Briefly, the facts are as follows. On July 30, 1978, petitioner and his two brothers, Ricky and Donald Tison, assisted in the escape of their father, Gary Tison, and Randy Greenawalt from the Arizona State Prison in Florence. The weapons used in the escape, and during the subsequent twelve-day flight, were provided by the three brothers. The five men fled the prison in a green Ford. Later they transferred to a Lincoln Continental. At one point the Lincoln became disabled with a flat tire. When four people in a passing car stopped to render aid, the gang killed the four and took their car. The gang was apprehended on August 11, 1978, after running a police roadblock.

  1. ENMUND ISSUE

    Petitioner argues that imposition of the death penalty in this case is unconstitutional under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The United States Supreme Court, in Enmund, held that the eighth amendment prohibits imposition of the death penalty absent a showing that the defendant killed, attempted to kill, or intended to kill. Intend to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony. Enmund, supra; State v. Emery, filed June 6, 1984.

    In the present case the evidence does not show that petitioner killed or attempted to kill. The evidence does demonstrate beyond a reasonable doubt, however, that petitioner intended to kill. Petitioner played an active part in preparing the breakout, including obtaining a getaway car and various weapons. At the breakout scene itself, petitioner played a crucial role by, among other things, holding a gun on prison guards. Petitioner knew that Gary Tison's murder conviction arose out of the killing of a guard during an earlier prison escape attempt. Thus, petitioner could anticipate the use of lethal force during this attempt to flee confinement; in fact, he later said that during the escape he would have been willing personally to kill in a "very close life or death situation," and that he recognized that after the escape there was a possibility of killings.

    The use of lethal force that petitioner contemplated indeed occurred when the gang abducted the people who stopped on the highway to render aid. Petitioner played an active part in the events that led to the murders. He assisted in the abduction by flagging down the victims as they drove by, while the other members of the gang remained hidden and armed. He assisted in escorting the victims to the murder site. At the site, petitioner, Ricky Tison and Greenawalt placed the gang's possessions in the victims' Mazda and the victims' possessions in the gang's disabled Lincoln Continental. After Gary Tison rendered the Lincoln inoperable by firing into its engine compartment, petitioner assisted in escorting the victims to the Lincoln. Petitioner then watched Gary Tison and Greenawalt fire in the direction of the victims. Petitioner did nothing to interfere. After the killings, petitioner did nothing to disassociate himself from Gary Tison and Greenawalt, but instead used the victims' car to continue on the joint venture, a venture that lasted several more days.

    From these facts we conclude that petitioner intended to kill. Petitioner's participation up to the moment of the firing of the fatal shots was substantially the same as that of Gary Tison and Greenawalt. See (Ricky) Tison, supra, 129 Ariz. at 545, 633 P.2d at 354. Petitioner, actively participated in the events leading to death by, inter alia, providing the murder weapons and helping abduct the victims. Also, petitioner was present at the murder site, did [142 Ariz. 457]

    Page 758

    nothing to interfere with the murders, and after the murders even continued on the joint venture.

    The present fact situation is significantly different from that in Enmund and much more analogous to cases decided subsequently to Enmund in which the Enmund requirement was satisfied. In Enmund, unlike in the present case, the defendant did not actively participate in the events leading to death (by, for example, as in the present case, helping abduct the victims) and was not present at the murder site. In contrast, in State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), in which the Enmund requirement was satisfied, the defendant, as in the instant case, (1) actively participated in the events leading to the death of the victim by assisting in her abduction, transporting her to the murder site, and providing the instrument used to kill the victim, (2) was present at all times during the murder, and (3) did nothing to interfere. Also, in Ruffin v. State, 420 So.2d 591 (Fla.1982), as in the instant case, the defendant assisted in the abduction, was present at the killing, made no effort to interfere, and continued on the joint venture, using the victim's automobile. See also, e.g., Hall v. State, 420 So.2d 872 (Fla.1982); Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). The dictate of Enmund is satisfied.

  2. ISSUES RAISED ON DIRECT APPEAL

    Petitioner incorporates by reference all of the issues he raised to this court on direct appeal. We considered these issues on direct appeal and will not consider them again. See 17 A.R.S. Rules of Crim. Pro., rule 32.2(a)(2).

  3. ASSISTANCE OF COUNSEL

    Petitioner argues that his assistance of counsel at trial was ineffective because trial counsel did not request a hearing pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970), to question the reliability of identifications by a witness, Inez Stott, who testified she saw appellant in Yuma County (the county where the murders occurred). On direct appeal, petitioner alleged, albeit not for the same reason as urged before us now, that his trial counsel was ineffective. On direct appeal we addressed petitioner's allegations of ineffective assistance. See (Raymond) Tison, 129 Ariz. at 556, 633 P.2d at 365. We also examined the record and found no indication that trial counsel's efforts were inadequate. Id. Thus, the ineffectiveness claim was...

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