State v. Rumsey
| Decision Date | 14 April 1983 |
| Docket Number | No. 5042-2,5042-2 |
| Citation | 665 P.2d 48,136 Ariz. 166 |
| Parties | STATE of Arizona, Appellee, v. Dennis Wayne RUMSEY, Appellant. |
| Court | Arizona Supreme Court |
Ross P. Lee, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, for appellant.
Defendant was convicted of first degree murder, a violation of A.R.S. § 13-1105, and of armed robbery, a violation of A.R.S. § 13-1904. He was originally sentenced to life imprisonment for the murder and 21 years imprisonment for the robbery. On appeal, the murder sentence was vacated and the matter remanded for resentencing. State v. Rumsey, 130 Ariz. 427, 636 P.2d 1209 (1981). Following a new sentencing hearing, the death penalty was imposed. In the present appeal, defendant contends that he was twice put in jeopardy by imposition of the death penalty after a prior sentence of life imprisonment, thus violating the fifth amendment of the Constitution of the United States as applied to the states by the fourteenth amendment. 1 Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4031.
On December 6, 1979, defendant was charged by information with armed robbery and first degree murder of George Joseph Koslosky. A jury convicted defendant of all charges. The facts surrounding the robbery are set forth in State v. Rumsey, supra. As required by A.R.S. § 13-703, a sentencing hearing was held after conviction on the murder charge. At the original sentencing hearing, the State presented nothing more than the evidence which had been produced at the trial. The only defense witness was the foreman of the jury that had convicted defendant, who testified that the conviction had been based upon the felony murder rule rather than a finding of premeditation. The State contended that the trial evidence had established the aggravating circumstances which are specified in A.R.S. § 13-703(F)(3), (5) and (6). Defendant argued the existence of a number of mitigating circumstances, including lack of premeditation, conviction by means of the felony murder rule, youth (defendant was 19), and diminished capacity to conform his conduct to the law because of alcohol and drug consumption.
After hearing arguments, the court took the matter under advisement and on July 7, 1980, filed its special verdict, finding that there were no aggravating circumstances. The court specifically found that although there had been a risk of death to the person with the defendant at the time of the killing, that risk was not grave enough to be considered an aggravating circumstance. (A.R.S. § 13-703(F)(3).) It found that the pecuniary gain aggravating circumstance did not apply to felony-murder during a robbery, but only to "contract killing" situations. The court further found the murder had not been committed in an especially heinous, cruel or depraved manner. Finally, the trial judge found that there had been no mitigating circumstances. In light of these findings, the statute did not permit the court to impose the death sentence. (§ 13-703(E)) Accordingly, defendant was sentenced to imprisonment for life without possibility of parole for 25 years for the murder conviction. He was also sentenced to a consecutive term of 21 years for the robbery.
Defendant appealed, claiming that the sentences violated A.R.S. § 13-116, which prohibits consecutive sentencing for a single act or omission even though that act or omission may be punishable in different ways by different statutes. After defendant had perfected his appeal, the State filed a cross-appeal under A.R.S. § 13-4032(4), which permits appeal by the state from "[a] On remand, the trial court held another sentencing hearing under A.R.S. § 13-703 and filed a new special verdict. The court found "that the hope of financial gain was a cause of the murder" and that A.R.S. § 13-703(F)(5) was applicable because the "defendant committed the offense ... in expectation ... of pecuniary [gain]." The trial court again found that there were no mitigating circumstances sufficiently substantial to call for leniency. Having found one aggravating circumstance and no mitigating circumstance, the trial court followed the statutory mandate and imposed the sentence of death.
ruling on a question of law adverse to the state when the defendant was convicted and appeals from the judgment." The State contended on its cross-appeal that the trial court erred in holding that the pecuniary gain aggravating circumstance 2 applied only to a "murder for hire" situation. State v. Rumsey, 130 Ariz. at 431, 636 P.2d at 1213. Indeed, in a case decided only three weeks after defendant was sentenced to life imprisonment, this court held that the aggravating circumstance in question does apply where the killing is in furtherance of theft or robbery. State v. Clark, 126 Ariz. 428, 616 P.2d 888, cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980). 3 In deciding defendant's first appeal, we therefore held that the judge "erred in holding as a matter of law that [he] could not find as an aggravating circumstance that the murder was for monetary gain." State v. Rumsey, 130 Ariz. at 431-32, 636 P.2d at 1213-14. Because the trial judge made a legal error in interpreting the statute, we set aside the sentence of life imprisonment and remanded for redetermination of aggravating and mitigating circumstances and resentencing. Id. at 432, 636 P.2d at 1214. 4
Defendant argues that having first been sentenced to imprisonment for life, he was implicitly "acquitted" of death and that the subsequent imposition of the death penalty was prohibited by the fifth amendment proscription against double jeopardy.
The Supreme Court of the United States has summarized the protection afforded by the double jeopardy clause as follows:
That guarantee has been said to consist of three separate constitutional protections. It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.
United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980) (quoting North Carolina v. Pearce, 395 U.S. at 717, 89 S.Ct. at 2076).
The prohibition against being twice put in jeopardy:
was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).
The bar against retrial is not absolute. A defendant who succeeds in overturning his conviction may be retried because the reversal on appeal nullifies the original conviction and wipes the slate clean. Bullington v. Missouri, 451 U.S. 430, 441-42, 101 S.Ct. 1852, 1859-60, 68 L.Ed.2d 270 (1981). If, however, the defendant has been acquitted or the conviction reversed on the ground the evidence was insufficient to convict, the principles underlying the double jeopardy clause demand that he not be retried.
"The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal," for the
DiFrancesco, supra, (citations omitted) (quoting Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978)).
The Supreme Court considered the application of the double jeopardy clause to sentencing in both United States v. DiFrancesco, supra, and Bullington v. Missouri, supra. In DiFrancesco, the Court held that the prohibition against double jeopardy was not violated by a provision in the Organized Crime Control Act of 1970 (18 U.S.C. § 3576) which gave the United States the right to appeal a sentence imposed upon a "dangerous special offender." The government had sought review of the sentence imposed on DiFrancesco, claiming that the district court had abused its discretion by imposing sentences that were too lenient. The Court held that the sentencing was not equivalent to trial, so that neither the statutory procedure nor DiFrancesco's prospective resentencing to a longer term of imprisonment was prohibited by the double jeopardy provisions of the fifth amendment. Basic to the DiFrancesco decision is the concept that the double jeopardy clause was intended to provide protection only against successive trials. It is only when the defendant has been tried and acquitted--or finally convicted--that he may not again be put on trial for the same offense. The court held that ordinary sentencing procedures are not similar to "trial"; imposition of a particular sentence is not an implicit acquittal of more serious punishment 5 and there is, therefore, no consequent prohibition to resentencing with imposition of a more severe punishment.
In Bullington, the Supreme Court considered the bifurcated system for imposition of capital punishment. Bullington had been convicted of first...
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...a trial on the issue of life or death followed by the utilization of this court's appellate process. . . ." State v. Rumsey, 136 Ariz. 166, 173, 665 P.2d 48, 55 (1983).29 To- day's majority indicates, however, that the Arizona Supreme Court's independent review may serve as a substitute for......
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Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1983 - 1984
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