Richmond v. Lewis, 86-2382
| Decision Date | 26 December 1990 |
| Docket Number | No. 86-2382,86-2382 |
| Citation | 921 F.2d 933 |
| Parties | Willie Lee RICHMOND, Petitioner-Appellant, v. Samuel A. LEWIS, * Director, Arizona Department of Corrections; and Roger Crist, Superintendent of the Arizona State Prison, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, Wash., for petitioner-appellant.
Jack Roberts, Asst. Atty. Gen., Phoenix, Ariz., for respondents-appellees.
Appeal from the United States District Court for the District of Arizona.
Before ALARCON and O'SCANNLAIN, Circuit Judges, and STEPHENS, ** District Judge.
Willie Lee Richmond, who was sentenced to death upon conviction of first-degree murder in Arizona state court, appeals from the district court's denial of his petition for habeas corpus. He contends that imposition of capital punishment will violate his rights under the sixth, eighth, and fourteenth amendments. We now affirm.
A
This case arises from Richmond's conviction in 1974 for first-degree murder in the death of Bernard Crummett. On an August evening seventeen years ago, the victim met Rebecca Corella, a nude dancer, at the Bird Cage Bar in Tucson, Arizona. After leaving the bar, the pair met Richmond in the bar's parking lot where Corella attempted to persuade Richmond to allow his fifteen-year-old girlfriend, Faith Erwin, to prostitute herself with Crummett. Richmond and Erwin refused, and after a brief conversation, Corella agreed to have sex with Crummett herself. Crummett thereupon produced a twenty-dollar bill, which Corella handed to Richmond and which Richmond palmed and surreptitiously exchanged for a ten. A brief argument ensued as Richmond and Corella insisted that Crummett had only given them ten dollars.
Crummett eventually yielded and agreed to pay more. As he reached into his wallet a second time, Corella observed what seemed a considerable amount of cash, and she communicated her observation to Richmond. All four individuals then proceeded in a borrowed station wagon to Corella's motel-room apartment. There, just as Corella and Crummett emerged from the bedroom, Richmond whispered to Erwin his intention that they rob Crummett, explaining that they should not commit the crime in the apartment because Crummett might remember the surroundings.
The group then left the motel and with Richmond as their driver proceeded to the end of a road on the outskirts of Tucson. Richmond thereupon stopped the car, and either Richmond or Corella--the testimony conflicts--told Crummett to get out because the car had suffered a flat tire. Richmond then assaulted Crummett, beating him with his fists and knocking Crummett to the ground. As Crummett lay motionless, Richmond pelted him with rocks. Corella, meanwhile, grabbed Crummett's wallet. According to Erwin, who admitted that she was vomiting and "coming down" from heroin during the incident, the following events then transpired:
Q. [Mr. Howard, Prosecutor]
Then what happened?
A. [Erwin]
Well, they all got in the car, and Becky [Corella] was getting the wallet and what else, you know. I looked over to see what else was taken. And Becky [Corella] was getting the wallet and we came in the car and left.
Q. And where did you go from there?
A. Back to the Sands Motel.
Q. Did you run over anything?
A. Yes, a man. It was a bump, after we were leaving.
Q. After you felt that bump, was anything said in the car when you felt that bump?
A. Becky [Corella] said, it felt like a man's body.
Q. Who was driving the car?
Under cross-examination, Erwin stood by her contention that Richmond had been the driver at the time the car ran over Crummett. She admitted, however, that she was suffering greatly under the influence of her drug injections at the time and that she was lying back on the car seat with her eyes closed.
The police found Crummett's body at five o'clock the following morning. The examining pathologist testified at trial that the body exhibited signs of three forms of extreme force. First, there were wounds and indentations in the head consistent with a contention that the victim had been pummeled with rocks. In conjunction with this observation, he noted that several blood-stained rocks were found in the immediate vicinity of the body. Second, he testified that the victim's head had suffered severe trauma and "bursting" from a crush injury most probably attributable to an automobile tire. He identified this second injury as the probable cause of death. Third, he testified to the presence of a second crush injury along the trunk and the abdominal section. This too the pathologist attributed to an automobile tire, which impacted the body from the opposite direction at least thirty seconds after the fatal blow. He concluded, therefore, that the victim was twice run over--once while alive but presumably unconscious and a second time after death. A police detective also testified to the discovery of human blood and hair on the undercarriage of the recovered station wagon.
Shortly after the night of Crummett's death, Richmond was arrested on two unrelated murder charges. As he awaited proceedings on those charges in jail, he was served with an arrest warrant for the murder of Crummett, and he agreed to waive his rights and make a statement at that time. Although he admitted to robbing and beating Crummett, he claimed that he was not the driver when Crummett was run over. In his statement, which was taped and played at trial, Richmond insisted:
I opened the door. I snatched the dude out by his collar, and bam, he falls straight out. I wanted to go through his pockets, but she [Corella] was already going through his pockets and he was getting up and I reached down and punched him again. So my old lady, Faith [Erwin], she couldn't take it. She got out of the car and she looked and she started crying, you know. And about that time I am looking at her, and going through his change. And this rock, you know, like that, and dip, dip like that, you know. And I said, wow, to myself, you know. Come on let's get in the car and me and her [Erwin] get in the car, and I am talking to her [Erwin] and Rebecca [Corella] gets in the car and she backed up and she throws up in gear and comes back over. And we were going on down further and she was all over the fucking road, and said, give me this mother-fucking car and let me drive, you know.
At the conclusion of the evidentiary phase of the trial, the judge instructed the jury that Richmond could be convicted of first-degree murder upon either a finding of premeditation or a felony-murder theory:
Murder is the unlawful killing of a human being, with malice aforethought.
* * * * * *
The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a result of the perpetration of, or attempt to perpetrate, the crime of robbery and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.
* * * * * *
If a human being is killed by any one of several persons engaged in the perpetration of, or attempt to perpetrate, the crime of robbery, all person[s] who either directly and actively commit the act constituting such crime or who knowingly and with criminal intent aid and abet its commission or, whether present or not, who advise and encourage its commission, are guilty of murder in the first-degree, whether the killing is intentional, unintentional, or accidental.
Upon these and other instructions, the jury found Richmond guilty of first-degree murder on February 5, 1974. 1
After a separate hearing held before the trial judge alone, the court pronounced its sentence:
The court rendered a special verdict finding the existence of two aggravating circumstances: 1) that the defendant was previously convicted of a felony involving the use or a threat of violence on other persons, and 2) that the defendant had committed the offense in an especially heinous and cruel manner. It found none of the statutory mitigating circumstances to be present. Based on its findings, the court sentenced the defendant to death.
State v. Richmond, 114 Ariz. 186, 189, 560 P.2d 41, 44 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).
Richmond petitioned in state court for post-conviction relief claiming the discovery of new exculpatory evidence. He presented an affidavit from Daniel McKinney, a former boyfriend of Corella, in which McKinney stated that Corella had admitted to being the driver when the car ran over Crummett. The state countered with a transcribed tape recording in which McKinney claimed that Richmond had threatened him in prison. The petition for relief was denied. On automatic appeal, the Arizona Supreme Court affirmed both the conviction and the sentence, holding inter alia that (1) Richmond's case was properly submitted on a theory of felony murder, (2) post-conviction relief was properly denied, and (3) the Arizona death penalty statute was constitutional, both as written and as applied. See 114 Ariz. at 190-98, 560 P.2d at 45-53.
After the United States Supreme Court denied certiorari on direct appeal, Richmond petitioned for a writ of habeas corpus in the federal district court of Arizona. He argued that the Arizona statute unconstitutionally deprived him of the opportunity to present non-statutory mitigating circumstances before the judge at sentencing. The district court upheld Richmond's conviction but ruled the Arizona statute unconstitutional under the eighth and fourteenth amendments for its failure to allow consideration of a convict's character. Richmond v. Cardwell, 450 F.Supp. 519 (D.Ariz.1978). The court therefore vacated Richmond's sentence. 2
At a second sentencing hearing in March 1980, the state trial court...
To continue reading
Request your trial
-
Williams v. Stewart
...U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), which effectively overruled Adamson. Id. at 647, 110 S.Ct. 3047; see Richmond v. Lewis, 921 F.2d 933 (9th Cir.1990) ("The Supreme Court granted certiorari in Walton specifically because of this circuit's en banc holding in Adamson, and Walto......
-
Richmond v. Lewis
...of Arizona. Before ALARCON and O'SCANNLAIN, Circuit Judges, and STEPHENS, ** District Judge. ORDER The opinion reported at 921 F.2d 933 (9th Cir.1990) is hereby amended as follows: in the block quotation in the second column on page 943 of the opinion, twenty-two lines from the bottom of th......
-
People v. Hill
...spends on death row during the prosecution of his appeals can accrue into an independent constitutional violation...." (Richmond v. Lewis (9th Cir.1990) 921 F.2d 933, 949.) We are similarly unaware of any such authority. Indeed, the longest postconviction "delay" in most capital cases accum......
-
Beam v. Paskett
...in a particular case by weighing the aggravating circumstances against the mitigating ones. See Idaho Code § 19-2515. Cf. Richmond v. Lewis, 921 F.2d 933 (9th Cir.1990), amended, 948 F.2d 1473, 1487-89 (9th Cir.1992) (discussing Arizona death penalty statute that does not involve "weighing"......
-
Getting out of this mess: steps toward addressing and avoiding inordinate delay in capital cases.
...court which would support the relief he seeks under this allegation. Richmond v. Ricketts, 640 F. Supp. 767, 803 (D. Ariz. 1986), aff'd, 921 F.2d 933 (9th Cir. 1990), rev'd on other grounds, 506 U.S. 40 (1992), and vacated, 986 F.2d 1583 (9th Cir. (23) According to the Ninth Circuit: A defe......