Richmond v. Ricketts

• Decision Date: 11 July 1986
• Docket Number: No. CIV 84-010 TUC ACM.,CIV 84-010 TUC ACM.
• Citation: 640 F. Supp. 767
• Parties: Willie Lee RICHMOND, Petitioner, v. James R. RICKETTS, Director, Arizona Department of Corrections; and Donald Wawrzaszek, Superintendent of the Arizona State Prison, Respondents.
• Court: U.S. District Court — District of Arizona

640 F. Supp. 767

Willie Lee RICHMOND, Petitioner, v.James R. RICKETTS, Director, Arizona Department of Corrections; and Donald Wawrzaszek, Superintendent of the Arizona State Prison, Respondents.

No. CIV 84-010 TUC ACM.

United States District Court, D. Arizona.

July 11, 1986.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jack Roberts, Asst. Atty. Gen., Dept. of Law, Phoenix, Ariz., for petitioner.

Carla Ryan, Pima County Public Defender's Office, Tucson, Ariz., Tim Ford, Seattle, Wash., for respondents.

ORDER

MARQUEZ, District Judge.

Petitioner, Willie Lee Richmond Richmond, filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.He challenges his conviction for first degree murder and his sentence of death.

FACTS AND PROCEDURAL HISTORY

During the late evening hours of August 25, 1973, Richmond and his fifteen year old girlfriend, Faith Erwin¹, went to the Bird Cage Bar in Tucson.They waited outside for a friend of theirs named Rebecca Corella² who was a nude dancer at that bar.Corella came out of the bar with Bernard Crummett.They sat and talked for a while in the front seat of the car that Richmond had driven to the bar.Richmond and Erwin stood nearby in the parking lot.After a short while Richmond joined Corella and Crummett in the car.An argument ensued between Richmond and Crummett because Crummett wanted Erwin to perform an act of prostitution with him.Richmond refused to allow Erwin to perform the act.Corella agreed, however, to prostitute herself with Crummett for twenty dollars.Erwin then joined the other three in the car and Richmond drove them to the hotel on Benson Highway in Tucson where Corella was staying.

Corella decided that she was interested in robbing Crummett.Before she tried to rob him, Corella decided to find out how much money Crummett had with him.She had Richmond act as her pimp with Crummett.Crummett paid Corella the twenty dollars in advance of the act.Corella then left the room to give the money to Richmond who switched the twenty dollar bill for a ten dollar billhe had.He then harassed Crummett about trying to give them less money.Crummett then opened his wallet to pay the additional ten dollars.

When Crummett opened his wallet, it was Corella's job to observe how much money was in the wallet so that she and Richmond could determine if it would be worth their while to rob Crummett.She apparently observed what she believed to be a large amount of money and notified Richmond that Crummett was "loaded."Corella and Crummett then went into one of the bedrooms of the hotel for a period of time.While they were in there, Richmond whispered to Erwin that they intended to rob Crummett but that Erwin should not say anything.

Shortly thereafter, Corella and Crummett came out of the bedroom and all four people got back in the car.Richmond again drove the car.They headed toward the west end of 22nd street in Tucson just west of "A" Mountain.When they reached the end of the paved road, which is in a desert area, Richmond stopped the car and got out.Corella, who was in the back seat with Crummett, informed Crummett that they had a flat tire and he should get out and help.Immediately after Crummett exited the car he was struck to the ground by Richmond.He was rendered unconscious.Richmond then walked around to the desert on the passenger side of the car and picked up some large rocks.Richmond stood directly over Crummett and threw the rocks at Crummett's head.

Crummett's pockets were then turned inside out and his wallet and watch were taken.The record is not clear whether it was Corella or Richmond or both who removed the objects from Crummett.The record indicates, however, that both Corella and Richmond shared in the proceeds from the robbery and Richmond later threw the watch out of the car window.

Following the robbery, Corella, Richmond and Erwin reentered the car leaving Crummett in the street.The car ran over Crummett as he laid in the street.The medical testimony at the trial indicates that Crummett was run over twice by the car and because of the direction and nature of the injuries, the car had to run over him two separate times.There was evidence that the body had been dragged under the car for a short distance.However, the injuries were of such a nature that they could not have been caused by the front and rear tires in one pass.The medical evidence also indicated that after the first infliction of injury to Crummett, the direct impact of a car tire to his head, Crummett suffered a massive head injury that caused his death.The second infliction of injury to Crummett was the passing of a car tire over Crummett's chest.Although the injuries to the chest were substantial, there was no bleeding, internally or externally from these injuries.That indicated to the medical examiner that the two passes of the car occurred at least thirty seconds apart and by the time the second injury occurred, Crummett's heart had already stopped beating and he had suffered a massive loss of blood.The body was discovered in the street several hours later.

Erwin testified at trial that Richmond was driving the car when it ran over Crummett.It was Richmond's contention that Corella was the one who drove the car.There was evidence at trial that both Richmond and Erwin had used heroin that night prior to going to the Bird Cage Bar and that Erwin was ill with "cotton fever."Erwin testified that she only heard the car strike Crummett one time.The proceeds from the robbery, other than the watch, was fifty dollars.

Shortly thereafter, Richmond was arrested on two other unrelated charges of first degree murder.On September 11, 1973 Richmond, while in jail, was served with the arrest warrant for the first degree murder of Bernard Crummett.He agreed to make a statement to the police officers concerning his involvement in the crime after he was given his Miranda warnings.In that statement, Richmond admitted to being a participant in the robbery and admitted to striking Crummett with the rocks, but he contended that Corella was driving the car.He said that Corella backed the car up and ran over Crummett.She then drove forward and ran over him again.Richmond's statement was the only evidence indicating that it was their car that struck Crummett the second time as the subsequent medical testimony revealed that the second infliction of the injuries could have occurred anytime between thirty seconds after the first one until the body was found several hours later.

Richmond was tried by a jury on charges of first degree murder and robbery.As to the murder charge, the prosecution presented evidence of both premeditated first degree murder and first degree murder under the felony murder rule.Richmond was convicted of both counts.Following a hearing pursuant to A.R.S. § 13-454,³ on February 27, 1974, Richmond was sentenced to between fifteen and twenty years on the robbery charge and death as to the murder charge.

Since the sentence of death was imposed, an automatic appeal was filed directly with the Arizona Supreme Court.During the pendency of the appeal, Richmond filed a petition in the trial court for post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure.In support of the petition, Richmond attached affidavits by two persons who stated that they were told by Corella that Corella, not Richmond, was driving the car when it struck Crummett.The petition was denied and an appeal was taken of that decision.The two appeals were consolidated by the Arizona Supreme Court.Both the convictions and sentence of death were affirmed by that court, State v. Richmond,114 Ariz. 186, 560 P.2d 41(1976).The United States Supreme Court denied a petition for a writ of certiorari, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101(1976).

During the pendency of the automatic appeal, Richmond was convicted of one of the prior charges of first degree murder.He received a sentence of life imprisonment on that charge.The homicide in that case occurred before the effective date⁴ of the Arizona death sentencing statute so that penalty was not applicable.Richmond was also tried on the third charge of first degree murder and was acquitted of that charge.

Richmond then filed a petition for a writ of habeas corpus in federal court challenging both his conviction and his sentence with regard to the killing of Crummett.The District Court upheld the validity of the conviction but invalidated the sentence of death because the statestatute as written placed too great a limitation of the Defendant's ability to present mitigating factors to the sentencing judge and accordingly, violated the Constitution, Richmond v. Cardwell,450 F.Supp. 519(D.Ariz.1978).No appeal was taken from that decision.

Shortly after the writ of habeas corpus was granted, the Arizona Supreme Court also held that the death sentencing statute was unconstitutional for the same reasons.In the opinion, the court severed the unconstitutional portion of the statute and affirmed the remainder, State v. Watson,120 Ariz. 441, 586 P.2d 1253(1978).Following this decision, the Arizona Supreme Court vacated each conviction and sentence of death for everyone on death row in Arizona, including Richmond, and remanded each case to the Superior Court for re-sentencing, placing no limitations upon the evidence that the Defendant could offer in mitigation.During the pendency of Richmond's resentencing, the Arizona legislature also amended the death penalty statute to add another statutory mitigating factor of the Defendant's age at the time the offense was committed.

Also while the re-sentencing was pending, Richmond joined a class action petition for a writ of habeas corpus filed by all persons on death row.That action challenged the authority of the Arizona Supreme Court to sever the invalid portion of the statute.The authority of the state supreme court...