State v. Smith, 4021-2
| Citation | 638 P.2d 696,131 Ariz. 29 |
| Decision Date | 07 December 1981 |
| Docket Number | No. 4021-2,4021-2 |
| Parties | STATE of Arizona, Appellee, v. Joseph Clarence SMITH, Jr., Appellant. |
| Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Crane McClennen, Asst. Attys. Gen., Phoenix, for appellee.
Stephen M. R. Rempe, Phoenix, for appellant.
Joseph Clarence Smith, Jr. was convicted of two counts of first degree murder and received the death penalty. He appealed, and we affirmed his convictions but remanded for resentencing in light of our holding in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979). See State v. Smith, 123 Ariz. 231, 243, 599 P.2d 187 (1979). After another aggravation/mitigation hearing, the death penalty was again imposed and this appeal followed. Affirmed.
Appellant questions the constitutionality of Arizona's death penalty statute. He asserts that the death penalty statute was improperly modified by this Court in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), and that the lower court's subsequent resentencing of him to death: (1) violated the double jeopardy clause of the Fifth Amendment; (2) is illegal in light of Chapter 138, Laws of 1973 § 10; and (3) constitutes an ex post facto application of the law. All of these issues have been resolved adversely to appellant on numerous occasions. We find it unnecessary to reconsider them at this time. See State v. Greenawalt, 128 Ariz. 150, 174, 624 P.2d 828 (1981); State v. Mata, 125 Ariz. 233, 241, 609 P.2d 48, cert. denied, 449 U.S. 938, 101 S.Ct. 338, 66 L.Ed.2d 161 (1980); State v. Arnett, 125 Ariz. 201, 202, 608 P.2d 778 (1980); State v. Jordan, 126 Ariz. 283, 286, 614 P.2d 825, cert. denied, 449 U.S. 986, 101 S.Ct. 408, 66 L.Ed.2d 251 (1980); and State v. Watson, supra. No compelling reason has been advanced which would cause us to conclude that we erred in our prior decisions.
Appellant also asserts that the imposition of the death penalty was improper because there was evidence sufficient to establish that his capacity "to conform his conduct to the requirements of law was significantly impaired, (although) not so impaired as to constitute a defense to the prosecution." See A.R.S. § 13-454(F)(1), now A.R.S. § 13-703(G)(1).
At the first aggravation/mitigation hearing, appellant presented the testimony of Dr. Faye G. Goldberg and Dr. Jacob Hoogerbeets to establish the existence of the mitigating factor specified in A.R.S. § 13-454(F)(1). At the second aggravation/mitigation hearing, neither the State nor appellant produced additional evidence of the existence of aggravating or mitigating circumstances. Both relied upon the evidence introduced at the first hearing. The lower court again found that there was an absence of any mitigating circumstances which would justify a reduction from the death penalty.
The court below found three of the aggravating circumstances set forth in A.R.S. § 13-454(E) (now § 13-703(F)) in the murder of Neva Lee, as follows:
(a) The Defendant has been convicted of the following felonies in this Court for which life imprisonment was imposable:
(3) CR 92168, Rape, First Degree, a Felony. The Court has personally reviewed the files in these causes and has considered Exhibit 1 (July 29, 1977) in Evidence.
(b) In addition, the Defendant has been convicted of Murder, First Degree of Sandy Spencer as set forth in Count I of the Indictment in this cause, for which a sentence of life imprisonment or death is imposable.
2. The Defendant was previously convicted of felonies in the State of Arizona involving the use of violence on another person.
FINDING: The Court finds this circumstance does exist. The finding under Paragraph 1(a) herein is incorporated as though fully set forth.
6. The Defendant committed the offense in an especially heinous, cruel, or depraved manner.
FINDING: The Court does find this circumstance to exist.
The victim Neva Lee was a 14 year old girl. The Defendant murdered her by forcing dirt into her mouth, larynx, the voice box, the trachea, the windpipe and the periphery of the bronchiolo of both lungs. She died of suffocation or asphyxiation due to obstruction of the airway by soil. Miss Lee also sustained a stab wound 1 inch long penetrating 1 inch at the left side of the vulva just at the entrance into the vagina. There were several tears in the area of the left and right vulva; and a tear in the posterior wall of the vagina. These wounds were inflicted ante mortem, or before death. (Miss Lee sustained many other wounds which were ante mortem, peri mortem and post mortem.)" As to the murder of Sandy Spencer, the court found the aggravating circumstances set forth in A.R.S. § 13-454(E) (now A.R.S. § 13-703(F)) to be:
(a) The Defendant has been convicted of the following felonies in this Court for which life imprisonment was imposable:
(3) CR 92168, Rape, First Degree, a Felony. The Court has personally reviewed the files in these causes and has considered Exhibit 1 (July 29, 1977) in Evidence.
(b) In addition the Defendant has been convicted of Murder First Degree of Neva Lee as set forth in Count II of the Indictment in this cause, for which a sentence of life imprisonment or death is imposable.
2. The Defendant was previously convicted of felonies in the State of Arizona involving the use of violence on another person.
FINDING: The Court finds this circumstance does exist. The finding under Paragraph 1(a) herein is incorporated as though fully set forth.
6. The Defendant committed the offense in an especially heinous, cruel, or depraved manner.
The court also found there were no mitigating circumstances in both homicides. It explained that it was not relying on the testimony of the State's psychiatrist, Dr. Michael Cleary, but was basing its finding solely on the fact that the evidence presented by appellant did not establish the existence of impaired capacity:
"I think the testimony of Dr. Hoogerbeets and Dr. Goldberg simply don't rise to a point where they need rebuttal so I am not considering Dr. Cleary's testimony on that basis."
In appellant's first appeal we held that "there was sufficient evidence adduced through Dr. Cleary's testimony to support the trial court's determination that the defendant could appreciate the wrongfulness of his acts or could conform his conduct to the requirements of law." State v. Smith, 123 Ariz. 231, 242-43, 599 P.2d 187 (1979). Appellant now argues that since this Court, in deciding his first appeal, relied upon Dr. Cleary's testimony to reject his argument that his capacity to conform to the requirements of law was significantly impaired, our conclusion must now be that the lower court erred in finding there was no mitigating circumstance requiring leniency. We disagree.
At the outset, it should be pointed out, as we have so many times held, that in reviewing imposition of the death penalty we will conduct an independent examination of the record to determine whether the death penalty was properly imposed. See State v. Britson, 130 Ariz. ---, 636 P.2d 628 (1981) (No. 4056, filed October 14, 1981).
Dr. Jacob B. Hoogerbeets, a physician licensed in the State of Arizona, an associate professor of psychiatry at the University of Arizona Medical School, College of Medicine, and board certified by the American Board of Psychiatry and Neurology, testified that appellant was able to assist counsel and knew right from wrong. He also testified:
"Q. * * * could you give your impressions as to Joe Clarence Smith as to whether he would, in your opinion, be mentally ill?
A. It's my opinion that he is mentally disturbed, yes.
I feel that Mr. Smith fills more the category of a, I would say almost a border-type psychotic person, with an abnormal psycho-sexual development, very strong neurotic traits, as I stated, almost bordering on psychotic traits, which drives him to compulsory aberrant actions. Unfortunately, often highly deviant and violent of nature.
Q. So you were familiar with the type of the deaths of each girl were committed, the suffocation by stuffing dirt in their mouths and stabbing repeatedly in the pubic area and the breast area?
A. I was familiar with that, yes.
Q. Would that type of killing itself be any indication of any kind of mental disorder?
A. Not absolutely necessarily so.
Q. * * * 'would his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired but not so impaired as to constitute a defense to prosecution. Such as definite insanity defense.
Do you think that he would be such a situation where he wouldn't be able to conform his conduct because of-he was any way significantly...
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