State v. Watson

• Decision Date: 20 July 1978
• Docket Number: No. 3089,3089
• Citation: 586 P.2d 1253,120 Ariz. 441
• Parties: The STATE of Arizona, Appellee, v. Spencer WATSON, Appellant.
• Court: Arizona Supreme Court

Page 1253

586 P.2d 1253

120 Ariz. 441

The STATE of Arizona, Appellee, v. Spencer WATSON, Appellant.

No. 3089.

Supreme Court of Arizona, In Banc.

July 20, 1978.

Rehearing Denied Nov. 9, 1978.

Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen. by William J. Schafer III, Crane McClennen, Frank T. Galati, Asst. Attys. Gen., Phoenix, for appellee

Molloy, Jones, Donahue, Trachta & Childers, P.C. by Michael J. Meehan, Tucson, for appellant.

CAMERON, Chief Justice.

This is an appeal from a sentence of death imposed after conviction and judgment of guilt to the crime of murder in the first degree, as well as a petition for review of a decision of the trial court pursuant to Rule 32 of the Rules of Criminal Procedure, 17 A.R.S., which held that the defendant was not denied a fair trial because of inadequate assistance of counsel.

We must answer four questions:

1. Is Arizona's death penalty statute, A.R.S. §§ 13-453 and 454, constitutional?

2. Was the defendant otherwise properly sentenced?

3. Was the defendant denied adequate assistance of counsel?

4. Was it error to deny defendant's request for a fingerprint expert at the Rule 32 hearing?

The facts necessary for a determination of this matter are as follows. Defendant was convicted by a jury trial of murder in the first degree, A.R.S. §§ 13-451, 452; armed burglary and burglary, A.R.S. § 13-302; robbery, §§ 13-641, 643; theft of a motor vehicle, A.R.S. § 13-672; and obstructing justice, A.R.S. § 13-541. Defendant Defendant appealed, raising numerous questions and this court affirmed the convictions, State v. Watson, 114 Ariz. 1, 559 P.2d 121 (1976), but vacated the death sentence and remanded the matter to the trial court for resentencing.

was sentenced to death on the murder count; concurrent 99 years to life sentences on the armed burglary, armed robbery, and robbery counts; fourteen to fifteen years on the count of burglary; and time served on the theft of a motor vehicle and obstructing justice counts.

Upon remand, the trial court held a complete hearing in mitigation and aggravation and sentenced the defendant to death. The trial court also heard the defendant's Rule 32 petition and found that the defendant was not denied effective assistance of counsel. Defendant appealed the sentencing and petitioned this court for review of the decision of the court in the Rule 32 hearing.

IMPOSITION OF THE DEATH SENTENCE

Defendant in his brief contended that the death penalty was not proper because the trial court failed to consider certain factors such as duress, youth, and intention as mitigating factors. The trial court, following the prior opinions of this court, did not consider any mitigating circumstances that were not contained in A.R.S. § 13-454(F). We have previously stated:

"The purpose of A.R.S. § 13-454 is to confine the discretion of the sentencing authority within defined limits. We reject the defendant's construction and hold that subsection D authorizes the trial court to take into account only those mitigating circumstances enumerated in subsection F." State v. Richmond, 114 Ariz. 186, 195, 560 P.2d 41, 50 (1976), cert. den. 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977).

After this case was submitted to this court for decision, the United States Supreme Court, in two cases, Lockett v. Ohio, --- U.S. ----, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Bell v. Ohio, --- U.S. ----, 98 S.Ct. 2977, 57 L.Ed.2d 1010 (1978), struck down as unconstitutional, death penalty statutes that restricted the right of the defendant to show mitigating circumstances which might relieve the defendant of the death penalty.

In Lockett, supra, a plurality of the United States Supreme Court stated that while its earlier opinions had not always been easy to decipher, the court had assumed, in upholding the death penalty statutes of other states, that the range of mitigating factors listed in the statute was not exclusive. The court then stated:

"(W)e conclude that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, (footnote omitted) not be precluded from considering As a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. (footnote omitted) * * *

"* * * But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable and incompatible with the commands of the Eighth and Fourteenth Amendments.

"The limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is incompatible with the Eighth and Fourteenth Amendments. To meet constitutional requirements, a death penalty statute must not preclude consideration of relevant mitigating factors." Lockett v. Ohio, --- U.S. ----, ----, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973 (1978).

Section F of A.R.S. § 13-454 is exclusive in that pursuant to Section D of A.R.S. § 13-454, the court may consider as mitigating circumstances only those contained therein. It is apparent that this restriction on the use of mitigating circumstances does The next question then is whether the constitutional and unconstitutional portions of A.R.S. §§ 13-453 and 454 are severable so that the constitutional portion of the statute can remain in force and effect.

not now pass constitutional muster. We hold that A.R.S. § 13-454(F), insofar as it limits the right of the defendant to show additional mitigating circumstances, is unconstitutional.

Severability is a question of legislative intent. We have stated:

" '* * * the valid part of a statute will be sustained where the valid and invalid parts are so separate and distinct that it is clear or may be presumed that the legislature would have enacted the former without the latter, if it had known of the invalidity, or, as otherwise stated, if the valid or invalid parts are not so intimately connected as to raise the presumption that the legislature would not have enacted the one without the other, the act will be upheld so far as valid. * * *' (citation omitted)

" 'To be capable of separate enforcement, the valid portion of an enactment must be independent of the invalid portion and must form a complete act within itself. The law enforced after separation must be reasonable in light of the act as originally drafted. The test is whether or not the legislature would have passed the statute had it been presented with the invalid features removed.' (citation omitted)" Millett v. Frohmiller, 66 Ariz. 339, 342-43, 188 P.2d 457, 460 (1948).

And:

"* * * (i)t is well settled in this state that where the valid parts of a statute are effective and enforceable standing alone and independent of those portions declared unconstitutional, the court will not disturb the valid law if the valid and invalid portions are not so intimately connected as to raise the presumption the legislature would not have enacted one without the other, and the invalid portion was not the inducement of the act." Selective Life Ins. Co. v. Equitable Life Assurance Society of U. S., 101 Ariz. 594, 599, 422 P.2d 710, 715 (1967). See also Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977); Iman v. Southern Pacific Co., 7 Ariz.App. 16, 435 P.2d 851 (1968).

Defendants in Arizona have always had the right to present any evidence in mitigation at the time of sentencing. State v. Hanley, 108 Ariz. 144, 493 P.2d 1201 (1972); Rule 26.7, Rules of Criminal Procedure, 17 A.R.S. We can presume that had the legislature been aware of the unconstitutionality of the limitation on mitigating circumstances, they would have enacted the remainder of the statute without what is now the offending portion. We hold that the statute with the portion deleted remains in force and effect.

The matter will have to be remanded for sentencing at which time the defendant will be allowed to present any mitigating circumstances tending to show why the death penalty should not be imposed. This is in accord with the United States Supreme Court which has upheld the constitutionality of a capital sentencing system where any mitigating factor was to be considered by a jury. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

"Thus, in order to meet the requirements of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances. In Gregg v. Georgia, we today hold constitutionally valid a capital-sentencing system that directs the jury to consider any mitigating factors * * *" Jurek v. Texas, 428 U.S. 262, 271-72, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929, 938 (1976).

If the trial judge finds that all the mitigating circumstances presented are "sufficiently substantial to call for leniency," then the death penalty shall not be imposed. A.R.S. § 13-454(D). Since the rest of the statute is still in force and effect, the State will be limited to the aggravating circumstances contained in A.R.S. § 13-454(E).

WAS THE DEFENDANT PROPERLY SENTENCED?

Defendant raises other questions concerning the imposition of the death penalty. Because they undoubtedly will be raised again, we feel it appropriate to consider them at this time. Defendant specifically contends that the death penalty was not properly imposed because:

a. Defendant was denied due process by being required to prove the mitigating circumstances listed in the statute.

b. Defendant was denied Sixth Amendment rights to a jury in that the judge and not the jury determines the aggravating and mitigating factors.

c. The murder was not committed in an ...