State v. Smith

Decision Date31 May 2007
Docket NumberNo. CR-04-0208-AP.,CR-04-0208-AP.
PartiesSTATE of Arizona, Appellee, v. Joe Clarence SMITH, Appellant.
CourtArizona Supreme Court

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Capital Litigation Section, Jon G. Anderson, Former Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Susan M. Sherwin, Maricopa County Legal Advocate by Kerri L. Chamberlin, Deputy Legal Advocate, Phoenix, Attorneys for Joe Clarence Smith.

OPINION

RYAN, Justice.

¶ 1 In 2004, Joe Clarence Smith was resentenced to death for two murders committed in 1975 and 1976. An automatic notice of appeal was filed under Arizona Rules of Criminal Procedure 26.15 and 31.2(b) and Arizona Revised Statutes ("A.R.S.") section 13-4031 (2001). We have jurisdiction under Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 13-4031.

I

¶ 2 On January 1, 1976,1 the nude body of Sandy Spencer was found in the desert northwest of Phoenix. Her nose and mouth had been stuffed with dirt and taped shut, causing asphyxiation. Ligature marks on her wrists and ankles indicated that she had been bound before death and the ligatures had been removed after death. Before or near the time of death, Spencer also suffered nineteen stab wounds to the pubic region and a vaginal tear that was caused by penetration. She also had three stab wounds to her breasts and a sewing needle was found embedded in her left breast.

¶ 3 On February 2, 1976, Neva Lee's nude body was discovered in the desert near the Salt River Indian Reservation. She, like Spencer, had died from "asphyxiation due to airway obstruction with soil." Ligature marks were present on her wrists and ankles — a result of injuries suffered before death. She also had puncture and stab wounds to her chest, abdomen, and breasts and damage to her vulva.

¶ 4 In November 1976, a Maricopa County grand jury indicted Smith for two counts of first-degree murder. The superior court severed the counts, requiring separate trials. A jury convicted Smith of first-degree murder on June 17, 1977, for the murder of Neva Lee. Smith then pleaded guilty on July 7, 1977, to first-degree murder for the murder of Sandy Spencer. The superior court subsequently sentenced Smith to death on both counts. This Court affirmed the convictions, but remanded for resentencing in light of State v. Watson, 120 Ariz. 441, 445, 586 P.2d 1253, 1257 (1978). State v. Smith (Smith I), 123 Ariz. 231, 243, 599 P.2d 187, 199 (1979).2

¶ 5 At resentencing, Smith's counsel presented no new mitigation evidence and Smith was again sentenced to death. On automatic appeal, the sentences were affirmed. State v. Smith (Smith II), 131 Ariz. 29, 35, 638 P.2d 696, 702 (1981).

¶ 6 From 1984 through 1991, Smith filed a series of unsuccessful petitions for post-conviction relief. Smith subsequently filed a habeas corpus petition in the United States District Court for the District of Arizona, which was denied.

¶ 7 On appeal, however, a divided panel of the Ninth Circuit held that Smith's counsel had been ineffective at the resentencing. Smith v. Stewart (Smith III), 189 F.3d 1004 1014 (9th Cir.1999). The majority concluded that counsel's failure to present more mitigation evidence after this Court had held that Arizona's mitigation statute was not limited to the listed statutory mitigating factors was equivalent to presenting no evidence in mitigation. Id. at 1009-11. The majority pointed to evidence of multiple personalities, other mental disorders, and good relationships as potential mitigating evidence that was not presented at the second sentencing proceeding. Id. at 1009-10. Believing that this evidence may have changed the mind of the sentencing judge, the court remanded the case to the district court with directions to vacate the death sentences and remand the cases for resentencing. Id. at 1013-14. On November 21, 2000, the federal district court issued an order in accordance with the Ninth Circuit's mandate.

¶ 8 The Maricopa County Superior Court held the first status conference on the case in December 2000. Because more than twenty-four years had passed since the commission of the murders, counsel for both sides required considerable time to gather evidence and prepare for the resentencing proceedings.

¶ 9 The Supreme Court's subsequent invalidation of Arizona's judge-sentencing procedure in capital cases caused further delay. See Ring v. Arizona (Ring II), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); State v. Ring (Ring III), 204 Ariz. 534, 65 P.3d 915 (2003). In response to Ring II, the Arizona Legislature "subsequently amended Arizona's death penalty statutes. The amended sentencing statutes assigned to juries the responsibility of finding aggravating circumstances and determining whether to impose the death penalty." State v. Glassel, 211 Ariz. 33, 42, ¶ 12, 116 P.3d 1193, 1202 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1576, 164 L.Ed.2d 308 (2006) (citations omitted); see also 2002 Ariz. Sess. Laws, 5th Spec. Sess., ch. 1, §§ 1, 3.

¶ 10 The sentencing proceeding for the murder of Sandy Spencer finally began before a jury in April 2004.3 In the aggravation phase, the State sought to prove the following aggravators: prior conviction for an offense punishable under Arizona law by a sentence of life in prison or death, A.R.S. § 13-454(E)(1) (Supp.1957-1978); prior felony conviction that involved the use or threat of violence on another, id. § 13-454(E)(2); and the offense was committed in an especially heinous, cruel, or depraved manner, id. § 13-454(E)(6). In support of the (E)(1) aggravator, the jury heard testimony that Smith had previously been convicted of three counts of rape and sentenced to five years to life, ten years to life, and seventy-five years to life. The State used Smith's conviction for the murder of Lee to prove the (E)(2) aggravator. In support of the (E)(6) aggravator, the State offered testimony about the stab and puncture wounds to Spencer's body and the asphyxiation. The jury made separate findings that each aggravator had been proved beyond a reasonable doubt. As to the (E)(6) aggravator, the jury made additional findings that each prong — cruelty, heinousness, and depravity — had been proved.

¶ 11 In the penalty phase, the defense presented testimony about Smith's mental health, his behavior while in prison, his struggles with asthma, and his family life. The jury determined that Smith should be sentenced to death for the murder of Spencer.

¶ 12 The sentencing proceeding for the murder of Lee, which began on May 5, 2004, before a new jury, substantially mirrored the Spencer proceeding. The State again sought to prove the (E)(1), (E)(2), and (E)(6) aggravators. Testimony related to the three prior rape convictions and the Spencer murder was offered to prove the (E)(1) and (E)(2) aggravators, respectively. The State also offered testimony about the injuries to Lee and her cause of death to support the (E)(6) aggravator. The jury once again made separate findings that all three aggravators had been proved beyond a reasonable doubt, including each prong of the (E)(6) aggravator. The mitigation and rebuttal evidence in the penalty phase was substantially the same as in the Spencer proceeding. This jury also determined that Smith should be sentenced to death.

¶ 13 Accordingly, the superior court sentenced Smith to death by lethal injection on both counts.

II

¶ 14 Smith first argues that the trial court erred in denying a judgment of acquittal on the (E)(2) aggravator because first-degree murder, under A.R.S. § 13-452 (Supp.1957-1978), did not necessarily require the use or threat of violence.4 Because this issue concerns a question of law, our review is de novo. See State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 930, 939 (2006), cert. denied, ___ U.S. ___, 127 S.Ct. 1914, 167 L.Ed.2d 570 (2007).

¶ 15 A prior felony conviction qualified as an aggravator under former A.R.S. § 13-454(E)(2) only if the elements of the offense — without regard to the underlying facts of the crime — required the use or threat of violence on another person. State v. Gillies, 135 Ariz. 500, 511, 662 P.2d 1007, 1018 (1983); see also State v. Fierro, 166 Ariz. 539, 549, 804 P.2d 72, 82 (1990) ("If, under the statutory definition of the crime, the defendant could commit or be convicted of the crime without the use or threat of violence, the prior conviction cannot qualify as a statutory aggravating circumstance."). Consideration of the underlying facts is impermissible because it would amount to a second trial. Gillies, 135 Ariz. at 511, 662 P.2d at 1018; see also State v. Schaaf, 169 Ariz. 323, 334, 819 P.2d 909, 920 (1991). Therefore, we focus on the language of the statute to determine whether first-degree murder necessarily required the use or threat of violence.

¶ 16 The statute in effect at the time of the murders defined first-degree murder as "murder . . . perpetrated by means of poison or lying in wait, torture or by any other kind of wilful, deliberate or premeditated killing." A.R.S. § 13-452. Smith contends that "under the statutory definition, first degree murder could be committed by lacing a victim's food or drink with poison. A murder committed in this manner would not involve the use or threat of violence." We reject this contention.

¶ 17 Under A.R.S. § 13-454(E)(2), violence is defined as the use or threat of force with the intent to injure or abuse. Fierro, 166 Ariz. at 549, 804 P.2d at 82. We hold that even surreptitious poisoning involves the use of force. A person who uses poison to kill another person "intentionally avails herself of the physical force exerted by poison on a human body." Vargas-Sarmiento v. U.S. Dep't of Justice, 448 F.3d 159, 174-75 (2d Cir.2006). Poison invades a victim's body, attacking vital organs, until it causes death. It is this result that an assailant seeks in choosing to poison his victim.

¶ 18...

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