State v. Richmond
| Decision Date | 15 December 1994 |
| Docket Number | No. CR-80-2914-AP,CR-80-2914-AP |
| Parties | STATE of Arizona, Appellee, v. Willie Lee RICHMOND, Appellant. |
| Court | Arizona Supreme Court |
More than twenty years ago, on February 25, 1974, Willie Lee Richmond was sentenced to death. Two decades later, Richmond is still alive and back before this court for the third time. To our knowledge, he is one of the longest-serving death row inmates in the United States. His case presents a classic example of the complex and often obscure rules governing capital sentencing schemes here and elsewhere in this country--rules that some would argue are increasingly incapable of consistent application.
This time, the United States Supreme Court has returned Richmond's case for correction of what it perceives to be constitutional error committed during our review of his second sentencing in 1983. Because of the unprecedented length of time Richmond has been on death row, this case presents unique and difficult questions. The law governing capital cases has changed significantly since his initial 1974 sentencing and, apparently, so has Richmond.
We need not repeat the facts of this case. They are set forth in our prior opinions. See State v. Richmond, 114 Ariz. 186, 189, 560 P.2d 41, 44 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977) (Richmond I ); State v. Richmond, 136 Ariz. 312, 315, 666 P.2d 57, 60, cert. denied, 464 U.S. 986, 104 S.Ct. 435, 78 L.Ed.2d 367 (1983) (Richmond II ). The jury convicted Richmond of robbery and first degree murder. It returned a general form of verdict after having been instructed on both premeditated murder and felony-murder. There was no indication which theory the jurors adopted.
The trial judge sentenced Richmond to death after finding the following aggravating factors: 1) that Richmond had previously been convicted of a felony involving the use or threat of violence (kidnapping), A.R.S. § 13-703(F)(2), and 2) that he had committed the present offense in an especially cruel and heinous manner, A.R.S. § 13-703(F)(6). The judge found no statutory mitigating circumstances, and he believed at the time that the law did not permit his consideration of non-statutory mitigation.
This court affirmed in 1976. We later vacated the death sentence, however, pursuant to State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253, 1257 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979) (Watson I ), which held that it was unconstitutional to restrict mitigating circumstances to those enumerated by statute. See also Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978).
On remand, Richmond was again sentenced to death. At his second sentencing, the trial court once more found the existence of both the (F)(2) (prior violent felony) and (F)(6) (heinous, cruel, or depraved) aggravating factors, as well as a third--that defendant had been convicted of another offense for which a sentence of life imprisonment or death was imposable (robbery and murder), A.R.S. § 13-703(F)(1). The court further found the following non-statutory mitigating circumstances: 1) that Richmond's co-defendants were involved in the offense but not charged with any crime; 2) that, near the time of the offense, the victim had engaged in an illegal act of prostitution with one of the women involved in the homicide, Becky Corella, and had solicited a similar act with Richmond's minor girlfriend, Faith Erwin; 3) that the jury had been instructed as to both premeditated murder and felony-murder; and 4) that Richmond's family was supportive and would suffer considerable grief if he were put to death. The court announced it was "unable to make a definitive finding" with respect to Richmond's changed character while in prison. Minute Order, Mar. 13, 1980, at 5. It concluded that the mitigation was not sufficiently substantial to call for leniency.
Although divided on various issues, this court affirmed Richmond's second death sentence in 1983. In the principal opinion, then-Chief Justice Holohan rejected the finding that the murder was especially cruel, but found that it was heinous and depraved. He was joined by Justice Hays. Justice Cameron, joined by then-Vice Chief Justice Gordon, concurred in the sentence of death, but disagreed that the offense was especially heinous or depraved. Justice Feldman filed a dissent rejecting imposition of the death penalty. He agreed that the killing was not especially heinous or depraved, and concluded that the evidence of Richmond's changed character was sufficiently substantial to warrant a reduction to life imprisonment.
After the United States Supreme Court denied certiorari, Richmond filed a habeas corpus petition in the United States district court, which also denied relief. The Ninth Circuit Court of Appeals affirmed. The Supreme Court reversed, however, with directions to grant the petition "unless the State of Arizona within a reasonable period of time either corrects the constitutional error in petitioner's death sentence or vacates the sentence and imposes a lesser sentence consistent with law." Richmond v. Lewis, 506 U.S. 40, ----, 113 S.Ct. 528, 537, 121 L.Ed.2d 411 (1992). Thereafter, the state moved to set a date for resentencing in the Pima County Superior Court. Despite apparent agreement by the parties that resentencing was appropriate, the judge sua sponte entered an order "referring" the case to this court "for further proceedings or clarification of the record." The district court has since set a deadline of December 17, 1994 for compliance with the federal mandate.
The "constitutional error" found by the Supreme Court was that a majority of this court failed to reweigh defendant's sentence after the trial judge "gave weight to an unconstitutionally vague aggravating factor." Richmond, 506 U.S. at ----, 113 S.Ct. at 537. 1 The threshold issue is whether we should correct this error or remand to the trial court. Several considerations lead us to conclude that we ought to conduct the reweighing here.
First, the language used by the Supreme Court suggests an intent that we should address the problem. Although finding that the Eighth Amendment violation arose in the second sentencing, the opinion directs that the petition be granted because of this court's failure to properly perform a new sentencing calculus. Richmond, 506 U.S. at ----, 113 S.Ct. at 537. 2 In addition, neither the Court's directive to correct the error or reduce defendant's sentence within a "reasonable period of time," nor the district court's deadline would seem to realistically contemplate remand for a third full-blown sentencing hearing followed by review here.
Defendant nevertheless argues we should remand because of our recent holding that where there is error in the weighing process and mitigating evidence is more than de minimus, the trial court generally should conduct the initial reweighing. State v. Bible, 175 Ariz. 549, 609, 858 P.2d 1152, 1212 (1993), cert. denied, --- U.S. ----, 114 S.Ct. 1578, 128 L.Ed.2d 221 (1994). There is, however, a notable exception to the Bible requirement, if "the State concedes that sentence reduction is preferable to remand." Id. Such a concession was effectively made at oral argument in this case, where the state urged us to reimpose the death penalty but agreed that if unable do so we should reduce rather than remand for yet another sentencing hearing. 3
The state observes that remand would almost certainly result in an additional round of appeals, 4 thus raising concerns under the Victims' Bill of Rights. Ariz. Const. art. 2, § 2.1. One of the guarantees afforded by that constitutional amendment is a "prompt and final conclusion of the case after the conviction and sentence." Id. § 2.1(A)(10). We agree that if this provision is to have meaning, victims are entitled to closure much sooner than 25 or 30 years after their perpetrators' convictions, although we cannot be sure they would generally support sentence reduction as a means to this end. On the other hand, even though capital prisoners should not be permitted to "benefit from the ultimately unsuccessful pursuit of [constitutional] rights," Richmond v. Lewis, 948 F.2d 1473, 1492 (9th Cir.1990), rev'd, 506 U.S. 40, 113 S.Ct. 528, 121 L.Ed.2d 411 (1992), delay resulting from meritorious challenges, as in this case, certainly cannot be held against them.
Richmond, meanwhile, urges us to consider the extraordinary length of time he has been on death row. If we remand and he is again sentenced to death, it could take five to ten years for completion of another appellate cycle. 5 In other words, the ultimate penalty would be imposed, if at all, almost three decades following commission of the crime. Such a delay is nearly unprecedented in this country. Defendant argues that execution after such a lengthy term of confinement on death row would constitute cruel and unusual punishment under the Eighth Amendment of the United States Constitution and article 2, § 15 of the Arizona Constitution. He claims that because such a punishment is tantamount to "torture [and] lingering death," it is "cruel" within the meaning of In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1889). See also Robert Johnson & John L. Carroll, Litigating Death Row Conditions: The Case for Reform, in Prisoners & the Law 8-3 (I. Robbins ed., 1988) ) (providing empirical evidence...
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