Sims v. Eyman

• Decision Date: 06 January 1969
• Docket Number: No. 22242.,22242.
• Citation: 405 F.2d 439
• Parties: Robert Lee SIMS, Petitioner, v. Frank A. EYMAN, Superintendent of Arizona State Penitentiary, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

405 F.2d 439 (1969)

Robert Lee SIMS, Petitioner, v. Frank A. EYMAN, Superintendent of Arizona State Penitentiary, Respondent.

No. 22242.

United States Court of Appeals Ninth Circuit.

January 6, 1969.

COPYRIGHT MATERIAL OMITTED

Wm. E. Hildebrandt, W. Edward Morgan, Tucson, Ariz., for petitioner.

Darrell F. Smith, Atty. Gen., Carl Waag, (argued) Asst. Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Phoenix, Ariz., for respondent.

Before HAMLEY and CARTER, Circuit Judges, and FOLEY^*, District Judge.

JAMES M. CARTER, Circuit Judge.

This is an appeal from a judgment of the district court, after hearing, denying a writ of habeas corpus sought by a state prisoner awaiting execution for the crime of murder. We affirm.

The appeal presents a series of constitutional or purported constitutional questions. They are:

1. Is there a denial of due process, equal protection, and the right not to plead guilty and demand a jury trial, where the state jury has power to assess the death penalty in a capital case without hearing evidence solely in mitigation of punishment, while on a guilty plea to a state judge the court may hear such evidence?

2. Is there a denial of fair trial and a lack of due process where jurors are excused on the basis of their answers to questions concerning capital punishment, and where the jury has no standards by which to determine the propriety of imposing the death penalty?

3. Is the death penalty cruel and unusual punishment in violation of the constitution?

4. May a state constitutionally provide that a prosecution for a criminal offense be had on the filing of an information by the district attorney, rather than by indictment by a grand jury?

5. Is there a denial of a fair trial and lack of due process in using the testimony of a confessed accomplice who has plead guilty and has not then been sentenced?

Petitioner Robert Lee Sims and one Leo G. Davis were charged with the murder of Glendell Soape. Davis entered a plea of guilty, testified for the State and thereafter received a sentence of life imprisonment. Sims was convicted of first degree murder by a jury which fixed the punishment at death. The court entered judgment and sentence on February 28, 1964. Sims appealed, and his conviction and sentence were affirmed by the Arizona Supreme Court, State v. Sims, 99 Ariz. 302, 409 P.2d 17 (1965); cert. denied 384 U.S. 980, 86 S.Ct. 1880, 16 L.Ed.2d 691 (1966).

Subsequently, Sims filed a petition for habeas corpus with the Arizona district court. Petitioner conceded in the habeas petition that, "None of the questions presented herein were raised during the trial in chief, any of the subsequent motions, or during appeal to the Supreme Court of Arizona. * * *"

After the habeas petition was filed on July 21, 1966, the district court on July 26, 1966, made an order reciting it was appropriate for the district court "to abstain until the state courts have had an opportunity to pass on the constitutional questions raised" and ordered that petitioner was allowed 10 days to institute appropriate proceedings in the Arizona courts.

A petition for writ of habeas corpus was filed with the Supreme Court of the State of Arizona on August 2, 1966 and denied by said court on September 20, 1966. This petition to the Arizona Supreme Court is not part of our record. We have permitted our record to be augmented with a copy of the habeas petition and the order denying the writ. The same contentions petitioner makes here were made to the Arizona Supreme Court and decided without opinion.

At the hearing in the district court the court inquired about the record and both parties stated they had no evidence to produce. The court said, "Well, I think it is always well to know what is in the record, what everybody concludes to be the record" and counsel for both parties expressed agreement.

The district court then considered these contentions and, on June 28, 1967, denied the writ. Petitioner now appeals.

THE FACTS

On the night of May 23, 1963, Davis (a Negro) first met Soape (a white man) in a bar in Sahuarita, Arizona, a predominantly Negro community south of Tucson. After becoming acquainted, Soape asked if he could get a colored girl. Davis shortly thereafter spoke to Sims who then left the bar and later returned with Georgia Mae Marchman, a Negro girl with whom Sims was living. After having intercourse, Soape and Marchman returned to the vicinity of the bar where they again met Davis and Sims. Soape wanted to go to Nogales, Mexico, for some whiskey, so the four of them left in Sims' car. After the trip had started, Sims proposed to Davis that they "roll" Soape; Marchman had no knowledge of this plan.

A short distance south of Sahuarita, Sims turned the car onto a side road. Soape immediately asked where they were going, whereupon Davis struck him over the head with a cotton spinner (a metal object), either stunning him or rendering him unconscious. Sims then stopped the car, got out and opened the rear door. He pulled Soape from the back of the car onto the road. While Soape lay on the road, Sims kicked him in the back of the head. Sims then dragged Soape a short distance into a barley field where Sims and Davis took his watch and wallet.

The decedent's body was discovered on May 25, 1963. A pathologist testified that a severe blow to the back of the head had broken the decedent's first cervical vertebra and caused death.

I.

Petitioner contends that the Arizona sentencing procedure in murder cases, which does not allow evidence solely in mitigation of punishment to be presented to a jury, violates due process, equal protection, and the right not to plead guilty and demand a jury trial. This contention raises constitutional questions with which we must deal at some length.

Arizona's murder statute, A.R.S. § 13-453, reads in part as follows:

"A. A person guilty of murder in the first degree shall suffer death or imprisonment in the state prison for life, at the discretion of the jury trying the person charged therewith, or upon a plea of guilty, the court shall determine the punishment."

Under this statute, when a defendant pleads guilty to a first degree murder charge, the judge determines the punishment, and he may impose the death penalty. State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966).

Arizona Rules of Criminal Procedure, Rules 336 and 187, 17 A.R.S. read:

"Rule 336. Inquiry into mitigating and aggravating circumstances. When the court has discretion as to the penalty to be inflicted on the defendant, it shall, upon suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the circumstances summarily in open court, either immediately or at a special time and upon such notice to the adverse party as the court directs, or the court may inquire into such circumstances of its own motion."

"Rule 187. Determination of punishment upon plea of guilty. When the defendant pleads guilty to an indictment or information, if the court accepts the plea and has discretion as to the punishment for the offense, it may hear witnesses to determine what punishment shall be imposed."

Rule 336 has been broadly interpreted in Arizona. The "circumstances" mentioned therein are not limited to extenuating circumstances immediately surrounding commission of the offense but include any type of information, both favorable and unfavorable, about the defendant's background and character. The judge assessing punishment is not bound by rules of evidence in hearing evidence to determine punishment, and he may consider many matters in mitigation or aggravation which would be inadmissible on the issue of guilt or innocence. State v. Levice, 59 Ariz. 472, 130 P.2d 53 (1942).

On the other hand, when a first degree murder case is tried before a jury, the jury sets the punishment. Though a death sentence returned by a jury in a capital case may be reviewed on appeal to the Arizona Supreme Court, the determination of punishment in such a case is wholly within the discretion of the jury, and unless the record clearly shows an abuse of discretion the verdict of the jury must stand. State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962).

No evidence in mitigation can be introduced in a first degree murder case tried to a jury unless it has some relevance toward proving the defendant's guilt or innocence, including the proper grading of the offense. While evidence in mitigation of the offense, such as reducing the crime to manslaughter, is admissible, evidence is not relevant for the sole purpose of mitigating the severity of the punishment. State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965); Campbell v. Territory, 14 Ariz. 109, 125 P. 717 (1912). Also, evidence concerning aggravation cannot be introduced before a jury against a defendant, unless it too has some relevance toward proving guilt or innocence, or grading the offense. Turley v. State, 48 Ariz. 61, 59 P.2d 312 (1936).

Thus, a defendant may not introduce the same type of evidence when he pleads not guilty and demands a jury trial as he would be able to introduce on a guilty plea before a judge. Petitioner contends that this procedure is unconstitutional.

A. The due process claim under the Fourteenth Amendment.

Petitioner contends that the Arizona procedure denies due process of law in that a jury may not hear evidence offered solely in mitigation of punishment. The question is whether allowing the introduction of such evidence is essential to a fair trial. We do not think that it is.

Arizona may constitutionally determine, as a matter of legislative policy, that the punishment for first degree murder shall fit the particular crime rather than the individual criminal. States have wide discretion to fashion their own rules of criminal procedure. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In dealing with this question, the Court of Appeals for the Tenth Circuit recently held that it...