State v. Tison

690 P.2d 747, 142 Ariz. 446, 1984 Ariz. LEXIS 292

• Court: Arizona Supreme Court
• Decided: October 18, 1984
• Docket: 4612-2-PC
• Status: Published

Opinions

HAYS, Justice.

Petitioner, Ricky Wayne Tison, was convicted of four counts of first degree murder, two counts of armed robbery, three counts of kidnapping, and one count of theft of a motor vehicle. Petitioner was sentenced to death for each first degree murder conviction. On direct appeal, this court affirmed all the judgments of conviction and sentences. See State v. (Ricky) Tison, 129 Ariz. 526, 633 P.2d 335 (1981). The superior court subsequently denied a petition for post-conviction relief and a motion for rehearing. See 17 A.R.S. Arizona Rules of Criminal Procedure, rule 32. Petitioner then petitioned this court for review of the superior court’s decision. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3), and rule 32. Relief is denied.

The facts of this case are set forth in our decision on direct appeal, see (Ricky) Tison, supra, and in the companion case, State v. (Raymond) Tison, 129 Ariz. 546, 633 P.2d 355 (1981). Briefly, the facts are as follows. On July 30, 1978, petitioner 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 in Florence. The weapons used in the escape, and during the subsequent twelve-day flight, were provided by the three brothers. The five men fled the prison in a green Ford. Later they transferred to a Lincoln Continental. At one point the Lincoln became disabled with a flat tire. When four people in a passing car stopped to render aid, the gang killed the four and took their car. The gang was apprehended on August 11,1978, after running a police roadblock.

I. ENMUND ISSUE

Petitioner argues that imposition of the death penalty in this case is unconstitutional under Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). The United States Supreme Court, in Enmund, held that the eighth amendment prohibits imposition of the death penalty absent a showing that the defendant killed, attempted to kill, or intended to kill. Intend to kill includes the situation in which the defendant intended, contemplated, or anticipated that lethal force would or might be used or that life would or might be taken in accomplishing the underlying felony. Enmund, supra; State v. Emery, filed June 6, 1984.

In the present case the evidence does not show that petitioner killed or attempted to kill. The evidence does demonstrate beyond a reasonable doubt, however, that petitioner intended to kill. Petitioner played an active part in preparing the breakout, including obtaining a getaway car and various weapons, and sawing off shotguns for use in the escape. At the breakout scene itself, petitioner played a crucial role by, among other things, holding a gun on prison guards. Petitioner knew that Gary Tison’s murder conviction arose out of the killing of a guard during an earlier prison escape attempt. Thus, petitioner could anticipate the use of lethal force during this attempt to flee confinement.

Lethal force was indeed used when the gang abducted the people who stopped on the highway to render aid. Petitioner played an active part in the events that led to the murders. He assisted in the abduction by arming himself and hiding with Gary Tison, Donald Tison, and Greenawalt while Raymond Tison flagged down the victims as they drove by. Petitioner assisted in escorting the victims to the murder site. At the site, petitioner, Raymond Ti-son and Greenawalt placed the gang’s possessions in the victims’ Mazda and the victims' possessions in the gang’s disabled Lincoln Continental. After Gary Tison rendered the Lincoln inoperable by firing into its engine compartment, petitioner assisted in escorting the victims to the Lincoln. Petitioner then watched Gary Tison and Greenawalt raise their weapons and fire in the direction of the Lincoln. Petitioner was close enough and had a good enough view to observe that Gary Tison was on the passenger side of the Lincoln and Greenawalt was on the driver side. Petitioner did nothing to interfere. After the killings, petitioner did nothing to disassociate himself from Gary Tison and Greenawalt, but instead used the victims’ car to continue on the joint venture, a venture that lasted several more days.

From these facts we conclude that petitioner intended to kill. We agree with the trial court that by his own statements petitioner’s participation up to the moment of the firing of the fatal shots was substantially the same as that of Gary Tison and Greenawalt. See (Ricky) Tison, supra, 129 Ariz. at 545, 633 P.2d at 354. Petitioner, actively participated in the events leading to death by, inter alia, providing the murder weapons and helping abduct the victims. Also, petitioner was present at the murder site, did nothing to interfere with the murders, and after the murders even continued on the joint venture.

The present fact situation is significantly different from that in Enmund and much more analogous to cases decided subsequently to Enmund in which the Enmund requirement was satisfied. In Enmund, unlike in the present case, the defendant did not actively participate in the events leading to death (by, for example, as in the present case, helping abduct the victims) and was not present at the murder site. In contrast, in State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), in which the Enmund requirement was satisfied, the defendant, as in the instant case, 1) actively participated in the events leading to the death of the victim by assisting in her abduction, transporting her to the murder site, and providing the instrument used to kill the victim, 2) was present at all times during the murder, and 3) did nothing to interfere. Also, in Ruffin v. State, 420 So.2d 591 (Fla.1982), as in the instant case, the defendant assisted in the abduction, was present at the killing, made no effort to interfere, and continued on the joint venture, using the victim’s automobile. See also, e.g., Hall v. State, 420 So.2d 872 (Fla.1982); Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983). The dictate of Enmund is satisfied.

II. ISSUES RAISED ON DIRECT APPEAL

Petitioner incorporates by reference all of the issues he raised to this court on direct appeal. We considered these issues on direct appeal and will not consider them again. See 17 A.R.S. Rules of Crim.Pro., rule 32.2(a)(2).

III. ASSISTANCE OF COUNSEL

Petitioner argues that his assistance of counsel at trial was ineffective because trial counsel did not request a hearing pursuant to State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970), to question the reliability of identifications by a witness, Inez Stott, who testified she saw appellant in Yuma County (the county where the murders occurred).

Petitioner’s claim does not warrant relief. The facts relevant to petitioner’s claim are as follows. On August 9, 1978, while petitioner was still at large, investigators interviewed Inez Stott. She told the investigators that while working at a general store in Wenden (Yuma County) Arizona, two teenaged boys, and later an older man, entered the store and purchased some spray paint. The investigators showed her photographs of Greenawalt, Gary Tison, and the three Tison brothers. The police report states that “STOCK [sic] did not positively identify any of the individuals shown to her, and the most that STOCK [sic] could say was that the teenage boys appeared to be similar in appearance as photographs of RAYMOND CURTIS TI-SON and DONALD JOE TISON.”

Stott was interviewed again on September 11, 1978. As during the first interview, she was shown photographs of Greenawalt, Gary Tison, and the three Tison brothers. The police report states that this time “she indicated that RICKY and RAYMOND TI-SON were the two boys who purchased the paint.” The next day Stott was interviewed a third time. The police report states that she “was shown all the photos of the male suspects involved in this investigation. She was unable to identify any one other than RICKY and RAYMOND TISON.” During the third interview, Stott agreed to be hypnotized and apparently was hypnotized later that day.

Petitioner demonstrates concern that trial counsel did not, in light of the hypnosis conducted on September 12, 1978, question Inez Stott’s competency to identify petitioner at trial. Petitioner was tried in early 1979. It was not until 1980 that this court specifically addressed the admissibility of testimony by witnesses who have been hypnotized, see State v. La Mountain, 125 Ariz. 547, 611 P.2d 551 (1980), and it was not until 1982 that this issue was settled, see State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982). Even in State v. Superior Court, three justices wrote separately from the court’s opinion and the fifth justice concurred in one of the separate opinions. It is not ineffective for counsel to fail to foresee developments in the law concerning a controversial subject like the use of testimony from a witness who has been hypnotized. See Cooper v. Fitzharris, 586 F.2d 1325, 1333-34 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979).

Petitioner contends that the hypnosis and the suggestiveness of the photo showups created a substantial question about the reliability of Inez Stott’s in-court testimony, and that it was therefore ineffective assistance for counsel not to request a Dessureault hearing. Any error was simply not prejudicial to petitioner. Petitioner argues that Inez Stott’s testimony was important to the state’s case because she was the only live witness who could place petitioner in Yuma County near the time of the murders. Petitioner neglects, however, other evidence placing him at the murder scene. It is uncontroverted that petitioner was with the gang both before the murders (at the prison escape) and after (at the roadblock capture). Petitioner's fingerprints were found on the Lincoln Continental and in the victims’ Mazda. Finally, petitioner’s own statements place him at the murder scene, as a participant in the abduction of the murder victims. We conclude that these facts rendered nonprejudicial any ineffectiveness of counsel arising from the failure to request a Dessureault hearing with regard to witness Inez Stott.

IV. DEATH PENALTY ISSUES

Petitioner argues that Arizona’s death penalty statute is unconstitutional because it excludes jury involvement in the sentencing decision. We disagree. See, e.g., State v. Smith, 136 Ariz. 273, 277-78, 665 P.2d 995, 999-1000 (1983); State v. Gretzler, 135 Ariz. 42, 56, 659 P.2d 1, 15 (1983); State v. Blazak, 131 Ariz. 598, 602, 643 P.2d 694, 698 (1982). The United States Supreme Court also disagrees. See Spaziano v. Florida, 44 CCH S.Ct.Bull.P., B4403 (July 2, 1984).

Petitioner also argues that on direct appeal this court did not conduct a proportionality review and that therefore petitioner’s right to meaningful appellate review was violated. We conduct proportionality reviews pursuant to our decision in State v. Richmond, 114 Ariz. 186, 196, 560 P.2d 41, 51 (1976), cert. denied, 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977). We decided Richmond almost five years before we considered petitioner’s case on direct appeal. Although not explicitly stated in the opinion, on direct appeal we followed Richmond. This contention is meritless. V. MIRANDA WARNINGS

Petitioner argues that several statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We addressed this issue on direct appeal. See (Ricky) Tison, supra, 129 Ariz. at 535-36, 633 P.2d at 344-45. We found that the record showed that before the trial court petitioner challenged the admissibility of his statements only as to voluntariness and not as to Miranda, and therefore the Miranda issue had been waived on appeal.

Petitioner now desires a hearing to show that at the suppression hearing the parties understood that the statements at issue were being challenged as to Miranda as well as voluntariness. It is well established that a party must state distinctly the grounds for a challenge to the admissibility of evidence, e.g., State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981); State v. Baca, 102 Ariz. 83, 87, 425 P.2d 108, 112 (1967), and that we therefore consider the objective record, not the subjective intentions of one or more of the parties. We held on direct appeal that the record shows that the statements were not challenged as to Miranda. The issue was waived.

Relief denied.

HOLOHAN, C.J., and CAMERON, J., concur.