State v. Hensley, 5556-2
| Citation | 691 P.2d 689,142 Ariz. 598 |
| Decision Date | 28 November 1984 |
| Docket Number | No. 5556-2,5556-2 |
| Parties | STATE of Arizona, Appellee, v. Robert HENSLEY, Appellant. |
| Court | Arizona Supreme Court |
Kemper & Henze by James Hamilton Kemper, Phoenix, for appellant.
This is an appeal from a reimposition of the death sentence by the trial court on defendant, Robert Lee Hensley. On January 26, 1981, defendant, Robert Cihak and Robert Berndt went to the Tin Horn Saloon to "hold up the place." Defendant was armed with a gun and shot three people during the course of the robbery, killing two of them. The facts are set out more fully in this Court's opinion in State v. Hensley, 137 Ariz. 80, 669 P.2d 58 (1983). Defendant was convicted on two counts of first degree murder. At the first sentencing, the trial judge found that the two murders were committed in expectation of pecuniary gain under A.R.S. § 13-703(F)(5), and defendant was sentenced to death on two counts of murder. 1 In State v. Hensley On remand a sentencing hearing was conducted. Two witnesses testified, Robert Cihak, one of the other perpetrators, and Joyce Windemuth who had been living with defendant, Cihak and Berndt, for about one week prior to the robbery and the murder. At the conclusion of the hearing the death penalty was imposed.
supra, this Court vacated the death sentence and remanded the case for resentencing, holding that the trial court erred in considering materials at the sentencing hearing which had been submitted under stipulation permitting their use for determination of the issues of guilt or innocence only. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.
Defendant raises two issues on appeal contesting the death sentence:
1. Whether the trial judge failed to find the aggravating factor that the murders were committed for pecuniary gain beyond a reasonable doubt.
2. Whether the trial judge properly admitted the testimony of Joyce Windemuth at the sentencing hearing against a relevancy objection.
At the second sentencing hearing on remand the trial judge found the existence of one aggravating circumstance, namely that the two murders "were committed in the course of an armed robbery and hence, in the expectation of receiving a monetary gain." 2 The defendant points to certain selected language used by the trial judge during an in-chambers discussion with counsel prior to sentencing in making his first argument:
The defendant argues that only two conclusions can be drawn from this language: (1) the trial judge had reasonable doubt as to the existence of the aggravating factor that the murders were committed in expectation of monetary gain, or (2) the trial judge based his imposition of the death As to defendant's first contention we recognize that in order to impose a sentence of death the trial judge must find the existence of one or more aggravating factors beyond a reasonable doubt. State v. Jeffers, 135 Ariz. 404, 661 P.2d 1105; cert. denied, 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983); State v. Jordan, 126 Ariz. 283, 614 P.2d 825, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980). See A.R.S. § 13-703(E). We do not believe, however, that the trial judge had reasonable doubt as to the existence of the aggravating factor when he made his finding. The trial judge was aware that the standard was reasonable doubt and was aware of his duty to follow this standard when making his finding. During the in-chambers discussion, defense counsel and the prosecutor brought the reasonable doubt standard to the trial judge's attention, and defense counsel admonished the trial judge to follow this standard:
penalty, in some measure, upon the submitted materials which this Court in State v. Hensley, supra, said he could not consider.
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[The prosecutor]: "The only evidence presented was that it was done for monetary gain. That is the statutory aggravating circumstance. There is no doubt about that and there is no argument about it.
"On the other side of the coin is the evidence of mitigation, the only evidence of mitigation is the G.E.D. That's all there is and that aggravating circumstance should stand beyond any doubt in the world, beyond the shadow of a doubt, not beyond a doubt, but there is no question about it."
The trial judge also mentioned the terms "reasonable doubt" during this discussion indicating his awareness of the appropriate standard.
At the end of the in-chambers discussion, the trial judge had the court reporter read back Cihak's testimony relating to the taking of the money from the cash register during the robberies and relating to why the three men went into the tavern. After some further discussion the trial judge recessed the in-chambers meeting so he would have time to consider the evidence presented at the hearing before making his final determination. A short time later the court reconvened, and the trial judge found that the aggravating factor existed. Although the trial judge appears to have vacillated during the in-chambers discussion on the existence of the aggravating factor, we can only believe that during the recess he reconsidered the evidence and resolved whatever doubts he may have had and "found after consideration of the record" beyond a reasonable doubt that the "offenses were committed in the course of an armed robbery, and hence, in the expectation of receiving a monetary gain." Any other interpretation would require us to say that the trial judge did not find the aggravating factor in question beyond a reasonable doubt when such a finding was ultimately made by the trial judge.
In his second contention defendant argues that the trial judge relied upon improper materials in making his finding of the aggravated circumstance. According to the holding of State v. Hensley, supra, the trial judge could not consider the submitted In stating his basis for the finding, the trial judge indicated that he only relied on the evidence presented by the two witnesses at the sentencing hearing.
material at trial during re-sentencing. Defendant's argument is contrary to the record.
[THE COURT] "I have reviewed the opinion of the Supreme Court.
We find that the trial judge based his finding of the aggravating factor solely on evidence admitted in the sentencing hearing in accordance with this Court's decision in State v. Hensley, supra. 3
Defendant's second major contention is that the testimony of Joyce Windemuth was irrelevant. At the aggravation hearing Windemuth testified over objection to certain observations of and conversations with the defendant. She testified that on the day of the robbery, January 26, 1981, she saw a gun in defendant's possession after the robbery, and that when defendant returned that evening with Berndt and Cihak, defendant unloaded expended bullets from the gun. On the following day, defendant told Windemuth...
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