State v. Tison

Decision Date09 July 1981
Docket NumberNo. 4612,4612
Citation633 P.2d 335,129 Ariz. 526
PartiesSTATE of Arizona, Appellee, v. Ricky Wayne TISON, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Bruce M. Ferg, David R. Cole, Asst. Attys. Gen., Phoenix, for appellee.

Echeverria, Glenn & Howard by Phillip W. Glenn, Dwight P. Callahan, Casa Grande, and Alan M. Dershowitz, Cambridge, Mass., for appellant.

Alan M. Dershowitz, Cambridge, Mass. and Alice L. Bendheim, Phoenix, for amici curiae American Civil Liberties Union Foundation, Arizona Civil Liberties Union, National Council of the Churches of Christ in the United States, The American Baptist Churches in the U.S.A.

STRUCKMEYER, Chief Justice.

This appeal is by Ricky Wayne Tison from judgments of guilty and death sentences on four counts of first degree murder. He also appeals from judgments of guilty and sentences on three counts of kidnapping, two counts of armed robbery, and one count of theft of a motor vehicle. Jurisdiction of this Court is pursuant to A.R.S. § 13-4031.

On July 30, 1978, appellant and his two brothers, Raymond and Donald Tison, assisted in the escape of their father, Gary Tison, and Randy Greenawalt from the Arizona State Prison. Both appellant's father and Greenawalt were serving life sentences for murder at the time. Appellant's convictions for crimes arising out of the prison escape and subsequent capture twelve days later were recently affirmed by this Court. State v. Greenawalt, et al., 128 Ariz. 388, 626 P.2d 118 (1981).

The five men fled the prison in a green Ford. Later they transferred to a Lincoln Continental. The Lincoln was discovered on August 6, 1978 in Yuma County, Arizona near Quartzsite. In and around the vehicle were the bodies of John and Donnelda Lyons and their twenty-two-month-old son, Christopher. The body of a niece of the Lyonses, Theresa Tyson, was later found approximately one-fifth of a mile west of the Lincoln. All four had died from shotgun wounds. The Lyonses had left Yuma on the night of July 31, 1978 on a vacation in a late model Mazda. A vehicle matching this description was subsequently discovered in Coconino County, Arizona near Flagstaff.

On August 11, 1978, the appellant, together with the other Tisons and Greenawalt, ran through two roadblocks south of Casa Grande, Arizona in a Ford van. After exchanging gunfire with police officers at the roadblocks, the van turned off into the desert and stopped. Donald Tison was found in the driver's seat of the van. He had been shot in the head. Appellant, his brother Raymond, and Greenawalt were captured nearby in the desert. Gary Tison was found dead several days later further on into the desert.

This Court recently affirmed Greenawalt's convictions and sentences arising from the four murders near Quartzsite. State v. Greenawalt, 128 Ariz. 150, 624 P.2d 828 (1981). Today we affirm Ricky and Raymond Tison's convictions and sentences for these crimes in this opinion and in the companion opinion of State v. Raymond Curtis Tison, 129 Ariz. ---, 633 P.2d 355 (1981).

After his capture, appellant made statements describing the prison breakout and subsequent activities, including the four murders. From these statements and other evidence introduced at trial, it was established that the breakout had been planned for some time. Appellant took an active part in the preparation, including obtaining guns and the Lincoln Continental. A gunsmith testified that appellant approached him about sawing off shotguns. The gunsmith also stated appellant, through his mother, purchased a .45 caliber Colt handgun from him. Two cartridges identified as having been fired from this gun were found near the murder scene.

Appellant in his statements explained that the Lincoln became disabled with a flat tire near Yuma. The Mazda was flagged down and all five men pulled guns on the Mazda's occupants, who were taken out of that car and placed in the Continental. Both cars were then taken down another road and parked trunk to trunk. Articles were exchanged between cars, and money and weapons belonging to John Lyons were taken. The Continental was then moved a short distance further, where Gary Tison and Greenawalt shot the victims.

The five men drove off in the Mazda. Within hours, appellant purchased paint to use on the Mazda. A few days later, the repainted Mazda was abandoned in the woods near Flagstaff.

The appellant first contends that a plea agreement which he had entered into should be specifically enforced against the State because, he asserts, he was willing to abide by the terms of the agreement. The agreement provided that appellant would plead guilty to one count of murder in the first degree for a recommended sentence of 25 years to life. In exchange, appellant would:

" * * * appear and testify truthfully in any proceedings pertaining to criminal charges relating to an incident occurring on or about August 1, 1978 in which the John Lyons family and Theresa Tyson were killed."

Appellant thereafter gave statements describing his participation in the murders, but a dispute arose as to the scope of the testimony which he would give in subsequent proceedings. Consequently, appellant withdrew his plea of guilty. Raymond Tison, in response to questions from the trial judge, explained:

"MR. RAYMOND TISON: Okay, the plea agreement says the incident. I figured they were talking about this incident going on up at Quartzsite. I had no idea that you were going to be asking about other people involved, about the escape, all this, and maybe what happened afterwards. I thought it was just going to be that incident. I would be happy to get up there and testify just to that incident, but that's it. I'm not involving nobody else. I'm staying right there. I will start from one time before we came there and before we left or to wherever we left.

THE COURT: Is that your position also, Ricky?

MR. RICKY TISON: Yes."

The appellant's position that the plea agreement should be specifically enforced against the State arises from his understanding of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). There, the prosecution promised not to make a recommendation for sentencing in exchange for the accused's plea of guilty. At the sentencing hearing, the prosecutor appeared and recommended that the maximum sentence be imposed, contrary to an earlier prosecutor's avowal that no recommendation as to the sentence would be made. The sentencing judge imposed the maximum sentence. The United States Supreme Court, in disapproving the practice, stated:

" * * * when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S.Ct. at 499.

Accord, State v. Stone, 111 Ariz. 62, 523 P.2d 493 (1974). The Court vacated the judgment and remanded to the state court to either allow the defendant the opportunity to withdraw the plea or specifically enforce the agreement against the prosecution.

While the remedy of specific performance of the plea bargain was sanctioned in Santobello for the unkept bargains of a prosecutor, it has rarely been used. See Note, The Legitimation of Plea Bargaining; Remedies for Broken Promises, 11 Am.Crim.L.Rev. 771 (1973). And see United States v. Nathan, 476 F.2d 456, 459 (2nd Cir. 1973), where specific enforcement of a plea agreement was refused because the defendant failed to disclose the agreed information.

The appellant argues in spite of his failure to carry out the terms of the plea bargain that he should be entitled to specific performance. He asserts that he was compelled to withdraw from his plea of guilty because the agreement's scope had been too broadly construed by the prosecution. We disagree. By the terms of the plea agreement, appellant was to provide testimony "in any proceedings", which he has refused to do. His non-compliance with the plea agreement precludes him from the relief requested.

It is argued that the language of the plea bargain did not contemplate appellant's testimony as to the conspiracy and the prison breakout, but neither did it explicitly limit his testimony to the events at the scene of the Yuma County murders. A guilty plea will not be set aside because of a "defendant's mistaken subjective impressions * * * absent substantial objective evidence showing such impressions to be reasonably justified * * * ", State v. Pritchett, 27 Ariz.App. 701, 703, 558 P.2d 729 (1976); see State v. Zarate, 106 Ariz. 450, 478 P.2d 74 (1970). Neither will a plea agreement be specifically enforced according to a defendant's unilateral interpretation of the terms of the bargain in the absence of objective evidence indicating that the interpretation is reasonably justified. See Adamson v. Superior Court of Arizona, 125 Ariz. 579, 611 P.2d 932 (1980). In State v. Cornwall, 114 Ariz. 550, 552, 562 P.2d 723 (1977), we held:

" * * * it is the duty of all parties involved to insure that the agreement which is eventually filed with the court contains the exact and complete agreement, no more, no less. And because the requirement to have the exact agreement in writing before the court applies with equal force to the defense, we are of the opinion that, had the defendant wished to plead under a different agreement or had he wished the inclusion of terms and conditions not already contained therein, it was incumbent upon him to object and to require the exact agreement to be evidenced in writing * * *."

It is also appellant's contention that the State did not prove he breached the terms of the plea agreement and that an evidentiary hearing on this question should have been conducted by the court below. We think, however, that the State has satisfied its burden of proof because the unequivocal refusal to testify by the appellant establishes a breach...

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