State v. Blazak, 3099

Decision Date11 March 1982
Docket NumberNo. 3099,3099
Citation131 Ariz. 598,643 P.2d 694
PartiesSTATE of Arizona, Appellee, v. Mitchell Thomas BLAZAK, Appellant.
CourtArizona Supreme Court
Robert K. Corbin, Atty. Gen., by William J. Schafer, III, Jessica Gifford, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee

Higgins & Sinema, P. C. by Thomas E. Higgins, Jr., Tucson, for appellant.

CAMERON, Justice.

On 20 November 1974, Mitchell Thomas Blazak was convicted on two counts of first degree murder, one count of assault with intent to commit murder, and one count of attempted armed robbery. He was sentenced to death and the conviction and sentence were affirmed by this court on 20 January 1977. See State v. Blazak, 114 Ariz. 199, 560 P.2d 54 (1977). On 6 December 1979, this court ordered 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. Defendant was resentenced to death on 11 September 1980 and appealed. Defendant also unsuccessfully sought post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S. We have original appellate jurisdiction pursuant to A.R.S. § 13-4031. We affirm.

We must answer the following questions on appeal:

1. Did resentencing pursuant to State v. Watson, supra, violate:

a. the ex post facto prohibition of the United States and Arizona Constitutions,

b. double jeopardy,

c. the due process clause of the United States and Arizona Constitutions, and

d. separation of powers?

2. Did the delay in resentencing violate defendant's Sixth Amendment right to speedy trial?

3. Did the State's failure to charge defendant under the sentencing statute, A.R.S. § 13-454, deprive him of adequate notice of the nature and cause of the accusation?

4. Is Arizona's death penalty statute unconstitutional?

a. Does Arizona's death penalty scheme constitute cruel and unusual punishment?

b. Does the imposition of the death penalty in a felony murder case constitute cruel and unusual punishment?

c. Is the death penalty imposable only by a jury?

d. Does it violate due process to place the burden of proving mitigating circumstances on the defendant?

e. Has the Arizona death penalty been applied in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution?

5. Was defendant's Rule 32 motion for post-conviction relief properly denied?

6. Was due process violated by the prosecution's failure to reveal the whereabouts of certain witnesses for the sentencing hearing?

7. Was the death penalty properly imposed?

The defendant's convictions are based on the following facts. Shortly after midnight on 15 December 1973, defendant Mitchell Thomas Blazak, armed and wearing a ski mask, attempted to rob the bartender of the Brown Fox Tavern in north Tucson, Arizona. When the bartender refused to surrender his money, Blazak fatally shot him and a patron sitting nearby. A third person was wounded. Blazak and an accomplice fled. A ski mask found along the likely escape route contained hairs which were identified as Blazak's. It was shown that the shells which were found in the bar could have come from Blazak's gun. The accomplice, testifying in exchange for a grant of immunity, identified Blazak as the gunman. His testimony was corroborated by physical and testimonial evidence. Following affirmance of Blazak's conviction, the case was remanded for resentencing pursuant to Watson, supra. At resentencing, the trial court found the following aggravating circumstances:

A.R.S. § 13-454(E)

(1) Conviction of another offense for which life imprisonment was imposable;

(2) Previous conviction of a felony involving use or threat of violence on another person;

(3) In the commission of this offense, defendant knowingly created a grave risk of danger to another person or persons in addition to the victims of the offense;

(5) The defendant committed the offense in expectation of the receipt of something of pecuniary value;

(6) The defendant committed the offense in an especially cruel and depraved manner.

Pursuant to A.R.S. § 13-454(F), the trial court found no mitigating circumstances sufficiently substantial to call for leniency and sentenced defendant to death. Defendant appeals.


Defendant first challenges the constitutionality of his resentencing under the mandate of State v. Watson, supra. Specifically defendant contends that Watson, supra, violates the prohibition against ex post facto laws found in Art. I, § 10 of the United States Constitution and Art. 2, § 25 of the Arizona Constitution. He argues that it also violates the Fifth Amendment prohibition against double jeopardy, and is judicial legislation and violative of the due process clause of the Fourteenth Amendment, or the separation of powers mandated by Art. 3 of the Arizona Constitution and Art. IV, § 4 of the United States Constitution. We have previously considered these challenges to Watson, supra, and have consistently rejected them. See State v. Watson, supra; State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981); State v. Bishop, 127 Ariz. 531, 622 P.2d 478 (1980). See also Knapp v. Cardwell, 667 F.2d 1253 (9th Cir., 1982) in effect upholding our decision in Watson, supra. We find no error in defendant's resentencing pursuant to Watson, supra.


The defendant was first sentenced to death on 17 December 1974. After the judgment was affirmed on appeal, the case was remanded pursuant to this court's decision in Watson, supra, and the defendant was again sentenced to death on 11 September 1980. Defendant argues that the delay of more than 5 years denied him due process and a speedy trial as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. He alleges that the oppression of being twice sentenced to death and the prejudice inherent in attempting to present evidence of mitigating factors years after the crime was committed require that the sentence of death be overturned. We do not agree.

Neither this court nor the United States Supreme Court has found that the right to a speedy trial extends to sentencing. State v. Steelman, 126 Ariz. 19, 612 P.2d 475 (1980). Neither are we able to find that the defendant was prejudiced by

the delay. All mitigating factors presented at the previous sentencing hearing were considered at the second sentencing, as well as new factors presented by the defendant. State v. Watson, 129 Ariz. 60, 628 P.2d 943 (1981). Also, the defendant has been unable to suggest any other mitigating factors which could not be shown by reason of this delay. We do not believe that the delay in resentencing resulted in prejudice to the defendant.


Defendant was charged in the indictment as follows:

"COUNT ONE (MURDER, First Degree)

"On or about the 15th day of December, 1973, MITCHELL THOMAS BLAZAK murdered ELDEN PATRICK BAKER, all in violation of A.R.S. § 13-451, § 13-452 and § 13-453.

"COUNT TWO (MURDER, First Degree)

"On or about the 15th day of December 1973, MITCHELL THOMAS BLAZAK murdered JOHN T. GRIMM, all in violation of A.R.S. § 13-451, § 13-452 and § 13-453."

A.R.S. §§ 13-451, 13-452, and 13-453, in effect at the time, defined murder and malice aforethought (§ 13-451); degrees of murder (§ 13-452); and punishment (§ 13-453). A.R.S. § 13-454 is a special provision which provides the procedure for sentencing in death penalty cases. This section was not cited in the indictment.

Defendant claims that the State's failure to charge him under A.R.S. § 13-454 constitutes inadequate notice that the death sentence might be imposed. We do not agree. The nature of an indictment is set out in Rule 13.2, Arizona Rules of Criminal Procedure, 17 A.R.S.:

"a. In General. The indictment or information shall be a plain, concise statement of the facts sufficiently definite to inform the defendant of the offense charged.

"b. Charging the Offense. The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated.

"c. Notice of Necessarily Included Offenses. Specification of an offense in an indictment or information shall constitute a charge of that offense and of all offenses necessarily included therein."

Due process requires that a defendant be advised of the specific charges against him, and an indictment sufficient on its face fulfills this requirement. State v. Henry, 114 Ariz. 494, 562 P.2d 374 (1977).

We believe that the indictment was sufficient on its face to inform the defendant not only of the crime of which he was charged, but the sentence he was facing. Rule 13.2 requires that the State inform the defendant only of the offense charged. It does not require the State to cite the sentencing statute, and failure to do so in the indictment does not render it invalid. We believe that the defendant had adequate notice of the crimes charged and the sentences that could be imposed if found guilty of any of the degrees of murder embraced by the statutes cited. We find no error.


a. Cruel and unusual punishment

Defendant next asserts that the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution and Art. 2, § 15 of the Arizona Constitution. As long as the death penalty is not imposed in an arbitrary and capricious manner, it is not unconstitutional by federal or state standards. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). We have held that the death sentence is not cruel and unusual, and that the Arizona system of sentencing does not result in arbitrary and capricious imposition of the death penalty. State v. Blazak, supra; State v. Jordan, 126 Ariz. 283, 614 P.2d 825 (198...

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