State v. Boggs
| Decision Date | 23 May 1968 |
| Docket Number | No. 1692,1692 |
| Citation | 441 P.2d 778,103 Ariz. 328 |
| Parties | The STATE of Arizona, Appellee, v. Donald Melvin BOGGS, Appellant. |
| Court | Arizona Supreme Court |
Darrell F. Smith, Atty. Gen., LeRoy R. Park, Asst. Atty. Gen., for appellee.
J. Thomas Brooks, Flagstaff, for appellant.
Appellant-defendant, Donald Melvin Boggs, plead guilty to two counts of first-degree murder in the Superior Court, Coconino County, and appealed from the imposition of sentence which was based on a jury verdict fixing the penalty at death.
On September 6, 1965, the Arizona Highway Patrol reported that the dead bodies of two Caucasian males had been found about seven miles East of Ashfork, Arizona. Each man's hands had been tied behind his back with cord; one of them had been beaten about the head and face with a blunt object and shot two times; the other one had been shot four times. All identification had been removed from them. The deceased were later identified as Halvar Johnson and Robert Willis from New Hampshire. In Flagstaff, a few days later, defendant Boggs and a young female companion were apprehended and arrested for the Ashfork killings.
Charges of murder were first filed against defendant by complaint and information. Defense counsel was appointed for Boggs, then because of objection of counsel to this procedure the charges were submitted to a grand jury, which returned an indictment against Boggs on two counts of murder of the first degree. On October 8, 1965, at his arraignment, defendant entered pleas of not guilty to both counts contained in the indictment. On October 11, 1965, at the request of defendant's counsel, the court ordered a mental examination pursuant to Rule 250, Rules of Crim.Proc., 17 A.R.S., and appointed two psychiatrists to conduct the examination.
On December 22, 1965, there was a hearing on re-arraignment on the indictment.
'Did you have something you wished to present to the Court at this time?
'MR. BROOKS: Yes, your Honor, I do.
'From the first moment that I met with Don Boggs several weeks ago after my appointment to represent him, he has been frank and honest with me concerning his involvement in the crimes of which he is charged before this court.
'I understand that he has been cooperative since the day of his arrest. It was at my direction that a plea of not guilty was entered so that I might have an opportunity to fully investigate the circumstances surrounding this particular case.
'During my investigation, your Honor, certain circumstances, certain facts concerning the case and concerning the defendant's development, his childhood, his personality, his present mental state, came to my attention. Certain facts and circumstances which would well have a bearing in this particular case, certainly, at least as to penalty--facts which I have felt, your Honor, then and feel now should be brought to the attention and determination of a jury.
'Now our rules of procedure, of course, do not specifically provide for a jury trial strictly on the issue of punishment in matters such as these, but I don't feel that under our law in this state that such a procedure would be precluded. I don't believe that this has ever been done in the State of Arizona, but I think it could be done.
'I took the liberty of discussing this matter with the County Attorney and he advised me that he would not have any objection to a jury trial solely on the issue of punishment in cases such as this, and I also understand that the Court would have no objection to such a procedure.
'I want to assure the Court that I have discussed the case with Don on many many different occasions. He is entirely familiar with the nature of the charges which have been filed against him and the penalty that could be assessed. He is aware of his alternatives in this particular case, but, your Honor, at this time, the defendant would request that he be allowed to withdraw his plea of not guilty heretofore entered and in entering a new plea, I would strongly urge that the matter continue to a trial before a jury on January 17th as scheduled solely for the purpose of determining the issue of punishment in this case.
'Do you have any objection?
'We will at this time then have a rearraignment on the charges if this is agreeable, Mr. Brooks.
'Will you have the defendant stand before the bench, please?
'Because of the charges involved, Mr. Brooks, I would like to have the charges again read to the defendant by the Clerk.
'(Whereupon, the indictment was read by the Clerk.)
'Do you understand that these are the only two possible sentences that can be imposed by this Court or by a jury?
While discussion between counsel and the court in chambers is not reported, the substance of it was set forth by the court, which is to the effect that defendant on the advice of his attorney changed his plea of 'not guilty' to 'guilty.' The discussion also indicates that it was done with the expectation but without an agreement with the court to submit the matter of his sentence to a jury trial, as counsel specifically made the latter request in open court, after the plea of guilty. The court fully advised defendant in regard to his rights, and that on entering a plea of guilty to either of the two counts 'the law places only two alternatives on sentence.' These are life imprisonment or death in the gas chamber. And in reply to this defendant stated that he understood that these were the only two possible sentences that could be imposed. After that the court ordered that the issues of punishment alone be submitted to the jury. A jury was duly empaneled, and, after the introduction of evidence, returned a unanimous verdict fixing the punishment at death. The court formally sentenced defendant based on the jury determination, and set the date of execution. Defendant then perfected this appeal.
Seeking to be re-sentenced, defendant raises five separate points in which he alleges the lower court erred in regard to assessment of the death penalty. The first of these assignments of error involved the admissibility of evidence, and the next two were in regard to instructions to the jury. Consideration of these...
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State v. Bush
...societal status of that penalty was "in turmoil," with "a plethora of arguments pro and con on the question"); State v. Boggs , 103 Ariz. 328, 334–35, 441 P.2d 778, 784–85 (1968) (holding that Arizona’s death penalty does not violate article 2, section 15 ). The dissent’s reliance on articl......
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