Tison v. Arizona Respondent's Brief on the Merits

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QUESTION PRESEN TED

Do tlie Eighth and Fourteenth Amendments prohibit a death 
sentence for one who plans a prison escape and then, while armed, 
participates in the escape, stops a car and robs and kidnaps the 
passengers, then herds them together and watches as his cohorts 
kill them?



TABLE OF CONTENTS

QUESTION PR ESEN TED ..........................

TABLE OF CONTENTS ............................

TABLE OF A U TH O RITIES.......................

STATEMENT OF THE CASE ...................

SUMMARY OF ARGUMENT .................

ARGUMENTS

I THIS CASE IS NOT LIKE ENMIIND.

A THE ARIZONA SENTENCING 
PROCEDURE CONSIDERED THE 
PERSONAL INVOLVEMENT OF 

EACH OF THE TISONS.......................

B THE PARTICIPATION OF THE 
TISONS IN THE MURDERS WAS 
SUBSTANTIAL..........................................

C. DEATH SENTENCES WILL SERVE 
THE SOCIAL PURPOSES OF 
DETERRENCE AND RETRIBUTION

II GODFREY v. GEORGIA HAS NOT
BEEN VIOLATED................

CONCLUSION



TABI.K OF CASKS AND AUTHORITIES

Fo5C Page

Allen v Stale 
253 C,a 390
321 S.E.2d 710 (1984)   14

Armstrong v. State 
399 So. 2d 953
(Fla 1981).......................................................................  11

Barclay v. Florida
463 U S. 939 
103 S.Cl 3418
77 LEd 2d 1134 (1983) ................................................... 22

Bell v. Ohio 
438 U S. 637 
98 S.Cl. 2977
57 LEd 2d 1010 (1978) ................................................... 12

('.ave v. Slate 
476 So.2d 180
(Fla 1985).......................................................................  15

Clines v. Stale 
280 Ark 77
656 S W 2d 684 (1983) ..................................................  15

Edwards v Arizona 
451 U S. 477
101 S.Cl. 1880
68 LEd 2d 378 (1981)   4

Enmund v. Florida 
458 U S. 782
102 S.Cl. 3368
73 L Ed 2d 1140(1982) ...................................................7,8,9,10,11

12, 13. 14, 15. 
16, 18, 20,21

Godfrey v. Georgia 
446 U S. 420 
100 S.Cl. 1759
64 LEd 2d 398 (1980) ...................................................8.20,21,22,23

Greenawall v Rickells 
784 F 2d 1453 
(9ih Cir 1986) 4

TABLE OF CASES AND AUTHORITIES CONTINUED

Case Page
Hall v. Stale 

420 So.2d 872
(Fla 1982).......................................................................  14

Hall v. Slate
403 So.2d 1321
(Fla. 1981).......................................................................  14

Hall v. Wainwrighl 
733 F.2d 766
(Uih Cir. 1984)   15

Harris v. Stale 
237 Ca. 718
230 S.E.2d 1 (1976) ........................................................  23

Lockett v. Ohio 
438 U.S. 586 
98 S.Cl. 2954
57L.Ed.2d 973 (1978)   12

People v. Davis 
95 III 2d 1
447 N.E.2d 353 (1983)   16

People v. Ruiz 
94 III 2d 245
447 N.E.2d 148 (1982)   15

Poland v. Arizona 
No. 85 5023
(U.S. May 5. 18%)   21

Ross v. Kemp 
756 F.2d 1483
(11th Cir. 1985)   16

Ruffin v. Slate 
420 F.2d 591
(Fla 1982)........................................................................ )4

Ruffin v. Stale
397 So.2d 277
(Fla 1981)........................................................................ 14

- I V -



table of oases and authorities continued

Case /,flSe
Selvage v. Stale 

j 680 S.W.2d 17
1 (Tex.Cr.App. 1984)    14

Slate v. Bracy 
145 Ariz. 520

j 703 P.2d 464 (1985) ........................................................  22

; Slate v. Carriger
143 Ariz. 142
692 P2d 991 (1948) ......................................................  20

Stale v. Ceja 
126 Ariz. 35
612 P.2d 491 (1980) .......... ...........................................  23

Stale v. Cillies 
135 Ariz. 500
662 P2d 1007 (1983) ....................................................  20- 22

Stale v. Greenawalt 
128 Ariz. 388
626 P.2d 118 (1981) ....................................................... 31

Stale v. Greenawalt 
128 Ariz 150
624 P2d 828 (1981) ....................................................... 17

State v. Gretzler 
135 Ariz. 42
659 P2d 1 (1983) .........................................................  3

Stale v. James 
j 14) Ariz. 141

685 P2d 1293 (1984) ....................................................  20' 22

Stale v. Madsen 
125 Ariz. 346
609 P2d 1046 (1980) ....................................................  20

Slate v. McCall 
139 Ariz 147
677 P 2d 920 (1984) .......................................................  3- 22

-V-

TABLE OF CASES AND AUTHORITIES CONTINUED

Case

Slate v. Poland
144 Ariz. 388 „„
698 P2d 183 (1985) .......................................................

Stale v. Smith
146 Ariz. 491 „„
707 P2d 289 (1985) .......................................................

Stale v. Tison
128 Ariz. 150 .
624 P2d 838 (1981) .......................................................

Slate v. While
470 So.2d 1377 . ,
(Fla 1985)......................................................................

Slate v. Wingo 
457 So.2d 1159
(la. 1984) ......................................................................

Tison v. Arizona 
454 U S. 848 
102 S.Ct. 167
70 I. Ed 2d 136 (1981) ..................................................  J

Whilus v. Georgia 
385 U S. 545 
87 S.Ct. 643
17 L Ed 2d 599 (1967) ..................................................  ,u

Wingo v. Blackburn 
783 F.2d 1046
(5th Cir 1986) ..............................................................

Zant v. Stephens 
462 U S. 862 
103 S.Ct. 2733
77 L.Ed.2d 235 (1982) ..................................................

Authorities
Ariz.Rev.Slat. Ann. .

§ 13703(F)(1) ..............................................................  ;
§ 13 703 (F)(2) ..............................................................
§ 13 703 (F)(5) ..............................................................

Arizona Rules of Criminal
Procedure 7

Rule 3 2 ...........................................................................
28 U.S.C 2254 ...................................................................
28U.S C 2254(d) (1982)   13

-vi-



1

STATEMENT OF THE CASE
'  On the morning of July 30, 1978, Ricky, Raymond and Donald 
1 ison drove lo (he Arizona Slate F’rison and parked their Ford in the 
visitors’ parking lot. They were there to see their father, Gary, who 
was serving a life sentence for killing a guard in an attempt to escape 
from the prison in 1967. (J.A. 243, 310.)

Raymond Tison left the car and entered the prison building. He 
went to the area set aside for visitors to meet with the prisoners, sat 
down and was soon joined by his father, Gary. The other two boys 
left the parking lot and then came back a half hour later and entered 
the prison. One of them was carrying guns concealed in an ice chest. 
In the control center the two met another prisoner named Randy 
Greenawall who was also serving a life sentence for murder. They 
uncovered the guns, gave one to Greenawall, and aimed them at the 
prison guards. (J.A. 96, 98.) In a short while they were joined by 
Gary and Raymond Tison, and the five then herded everyone, 
guards and a few visitors, into a storage room at gunpoint. With 
that, the five left the prison in the Ford and exchanged it for a 
Lincoln the boys had parked at a nearby hospital. (J.A. 10, 32, 33, 
53, 93.)

The five, well-armed with guns and ammunition the boys had 
collected in preparation for the breakout, headed west in the Lin­
coln toward a town named Quarlzsite. (J.A. 46, 49, 50, 52, 91, 116, 
129.) They hid in an abandoned house in the desert for a few days 
and then continued on in the Lincoln. One of the tires went Rat and 
then another, leaving them with no means of transportation. (J.A. 
11. 13,33. 35, 57 58, 99, 100.)

They decided they would have lo "flag a car down and take it.” 
One member of the gang would do the flagging because "one 
wouldn I look that bad” and the others would hide beside the road, 
two on each side. (J.A. 13, 14, 62, 64, 102, 103.) Raymond did the 
lagging. One car passed that did not slop, then a second car, a 
Mazda, passed, slowed down, made a U-turn and came back. The 
driver asked what the trouble was and as Raymond pointed to the 
Lincoln, the driver got out of the Mazda and the other members of 
the Tison gang, guns drawn, surrounded the newcomers, John and 
Donnelda Lyons, their baby son and their teenage niece, Theresa 
I yson. (J.A. 14, 15, 36, 64, 65, 104.) John Lyons told the gang that 
he had a .45 caliber gun in his car and he asked that there he no 
"trouble.” (J.A. 16,66 ) The gang removed I he gun from the Mazda 
and then at gunpoint they ushered the Lyons family and Theresa



2

Tyson into the backseat of the Lincoln. Willi Raymond driving and 
Donald keeping watch on the Lyons from the front scat, they drove 
a short distance from the highway, followed hy the Mazda with the 
other gang members. (J.A. 16, 17, 37, 66-67, 105.)

When the two cars stopped, the Lyons and Theresa Tyson were 
taken out of the Lincoln and made to stand in the light of the 
headlights. The two cars were placed trunk to trunk and the gang 
went through the Mazda "getting what they had, if they had 
money or so forth.’’ (J.A. 17, 18, 38, 68, 106.) They took some 
things from the Mazda, left others, and transferred everything from 
the Lincoln into the Mazda. (J.A. 24, 38, 44, 107, 131.) When that 
was done, Gary Tison told Raymond to drive the Lincoln further 
into the desert and to leave the motor running. Raymond did and 
Gary followed and fired a shotgun into the radiator "to make sure it 
wasn’t going to run.” (J.A. 19, 39, 61,71, 108.) At the Mazda, the 
gang members were standing around the Lyons like guard duty 
waiting for. Gary Tison to return. When he did they "escorted the 
Lyons family” and Theresa Tyson to the front of the disabled 
Lincoln where again they were forced to stand in the light of the 
headlights. As they were standing there, John Lyons pleaded, 
"more or less directed at everybody,” "Jesus, don’t kill me.” Gary 
Tison said he was ' thinking about it” and John Lyons continued, 
"Give us some water. That is all we ask for, just leave us out here, 
and you all go home.” As Ricky would remember later, his father 
"was thinking about it real hard if I want to do this or not. (J.A. 20, 
39, 73.) Gary told "nooody in particular," to go hack to the Mazda 
and gel some water and at that point Raymond Tison looked at his 
"dad and he was, you know, he was like in conflict with himself, you 
know. What it was, I thin it was the baby being there and all this, 
and he wasn’t sure about what to do.” (J.A. 20-21, 39, 74, 108.)

Ricky Tison remembered that at that point be and Raymond 
stayed at the car while Donald went back to the Mazda. After 
escorting th Lyons family and Theresa into the Lincoln, Ricky and 
Raymond went to help Donald gel the water. (J.A. 39, 40, 73, 108, 
109.) They found the water jug and returned to the Lincoln where 
the three "went back to our, more or less, our ground where we 
were before, you know, watching. Gary and Randy Greenawall 
went behind the Lincoln, talked, came back, raised up their shot 
guns and started firing. (J.A. 40-41.) When it was o\er Ricky and

3

Raymond went back to the Mazda, "threw the rest of the stuff back 
in, and Ricky looked back at the Lincoln. Gary was on the other 
side” and he was "firing into it.” He fired "a couple more shots” 
and then everybody got into the Mazda and left. (J.A. 41-42, 78, 
11314.)

Later, Raymond Tison related that he thought he and his broth­
ers were at the Mazda when the killings look place. He recalled that 
he "turned around and I could hear those shots and I could see 
flashes, you know. I could see silhouettes of the car and the 
people.” He also remembered that "the shots went on longer than 
what they should have . .1 think they had reloaded once or twice..
It just shouldn’t have taken that much.” (J.A. 21, 75, 77.)

John Lyon’s body was found a few feel from the car. The body of 
Donnelda was found in the backseat, ber baby’s body between her 
legs, and the body of Theresa Tyson was found some distance away 
in the desert. Eighteen spent shotgun shells were found beside the 
Lincoln.

A few days later, the gang, now riding in a van, ran into two 
roadblocks in Pinal County near Florence, Arizona, and were cap 
lured after exchanging gunfire with the police and crashing the van. 
Donald, the driver, was killed by a gunshot wound in the head. 
Raymond Tison, Ricky Tison and Randy Greenawall were captured 
a short distance away from the crash and Gary Tison escaped. His 
body was found in the desert a few days later. He died of exposure. 
(J.A. 28-29, 291 )

Raymond and Ricky Tison and Randy Greenawall were first tried 
in Pinal County for the crimes occurring during the prison break 
out and the capture at the roadblock. All three were convicted of 17 
counts of assault with a deadly weapon, possession of a stolen motor 
vehicle, unlawful flight from a pursuing law enforcement vehicle 
and aiding and abetting an escape.1 Later, three trials were held in 
Yuma County for the murders of the Lyons family and Theresa 
Tyson. Randy Greenawall was tried first. He was convicted of four 
counts of murder, armed robbery, kidnapping and theft of a

1 Stale r. Greenawall. 128 Ariz 388, 626 P2d 118 (1981), rerl 
denied, sub iimii, Tison i Arizona, 454 II.S. B48 (1981).



4

motor vehicle.2 A separate trial was held for Hicky Tison on the 
same charges and then a third trial was held for Raymond. Like 
Greenawall, each Tison was convicted of four counts of murder, 
armed robbery, kidnapping and theft of a motor vehicle. At each 
Tison’s trial, the jury was instructed in regard to the murder 
charges that guilt could he found upon two theories: that the four 
victims were killed by acts of conspirators during a conspiracy, 
which hound all conspirators, and that the murders were committed 
during the commission of felonies perpetrated by theTisons, avoid- 
ing a lawful arrest, escape, robbery, and kidnapping. (J.A. 179, 181, 
218-20.) The jury was not instructed that they could find theTisons 
guilty on a theory of premeditated murder.

After the convictions Raymond told a probation officer who was 
preparing a presenlence report "if they became involved with legal 
authorities or were near capture that a shooting incident would 
occur. He staled that in terms of innocent civilians being injured 
that it was most unfortunate but that his father was in charge.” 
(J.A. 305.) When asked if after the escape there had been mention 
of killing, he said, "Yea, there was always the possibility, like we 
knew in dad’s 1967 escape, he killed that guard." (J.A. 243.)

After a statutory sentencing hearing,1 the trial court, who is the 
sentencer in Arizona, considered the evidence admitted at the trial 
and at the sentencing hearing and found that three statutory ag 
gravating circumstances had been proved beyond a reasonable 
doubt: (1) that in commit ting the murders, theTisons had created a 
grave risk of death to people other than the victims, (2) that the 
Tisons had committed the offense in expectation of the receipt of some­

2 These convictions were affirmed by the Arizona Supreme 
Court, 128 Ariz. 150,624 P.2d 838 (1981) ,cert. denied, 454 U S. 822 
(1981). On March 20, 1986, the Ninth Circuit Court of Appeals 
reversed a district court denial of Greenawalt's petition for writ of 
habeas corpus and remanded on the basis of Edwards v. Arizona, 451 
U S. 477 (1981). Greenawall v. Ricketts, 784 F.2d 1453, 1457 (9th 
Cir. 1986).

A joint sentencing hearing was held: one hearing for both 
Tisons and all crimes.

5

thing of pecuniary value, the automobile and other properly ul the 
Lyons, and (3) that the murders were especially heinous, cruel and 
depraved. In regard to mitigation, the trial court noted that he 
considered all information relevant to any mitigation contained in 
the presenlence report, the sentencing hearing, the trial, and in the 
detailed transcribed statements of both Tisons after their capture. 
(Raymond — J.A. 9 30, 48 86; Ricky — J A 31 47, 87-122.) The 
trial court found that none of the statutory mitigating circumstan­
ces were present: neither bison’s capacity to appreciate the wrong 
fulness of his conduct or to conform his conduct to the law was 
impaired, neither Tison was under unusual or substantial duress, 
each Tison "could reasonably have foreseen that his conduct in the 
course of the commission of the offenses for which he was con­
victed would cause or create a grave risk of causing death to another 
person, ” and ” neither Tison’s participation was relatively minor.” 
In regard to the last point, the court noted that "although each of 
the defendants has stated the murders were actually committed by 
Cary Tison and Randy Greenawall, the participation of each in the 
crimes giving rise to the application of the felony-murder rule in 
this case was very substantial. Even accepting as true their state­
ments of who actually fired the fatal shots, it cannot be said that 
their participation was relatively minor." The court found that 
three non-slalutory mitigating factors were present: their ages at 
the lime of the murders (Ricky 20, Raymond 19), the lack of felony 
convictions before July 30, 1978, and the fact that each had "been 
convicted of four murders under the felony-murder instructions.
(J.A 283 85)

Before the sentence was passed, Ricky Tison told the court "that 
it tears me up that that family was killed. It’s something that I won’t 
forget.” Raymond Tison said that he wanted the court to know that 
"when we first came into this, we had an agreement with my dad 
that nobody would gel hurt because we wanted no one hurt. And 
when this came about, we were not expecting it. And it look us by 
surprise as much as it took the family by surprise because we were 
not expecting this to happen. And I feel bad about it happening ’ 
(J A 286 87.)

The trial court "weighed the aggravating circumstances and the 
mitigating circumstances” and sentenced each Tison to death on



6

each of the four counts of murder and each to life terms for the two 
robbery counts, life terms for the three kidnapping counts, and 4 to 

j 5 years for the theft of the Lyons’ motor vehicle. The term of years 
and the life sentences were to begin on the day of sentencing.

On the direct appeal from these convictions, the Tisons argued 
that the aggravating circumstances had not been proved, that the 

! participation of each of them in the murders was relatively minor, J and that the death sentence was a disproportionate penalty for 
; someone who took no part in the killing. (J.A. 305, 333-41.)

The Arizona Supreme Court held that the trial court should not 
have found as aggravation that in committing the murders the 
Tisons created a grave risk of death to persons other than the 

i victims. Although the trial court’s finding had "some support in the 
evidence,” said the supreme court, "taking all the facts into consid­
eration” the four victims were "ruthlessly and intentionally mur­
dered" and the aggravating circumstance of creating a grave risk of 
death to others only applies where the other persons are not the 
intended victims. (J.A. 334.) The supreme court found that there 
was sufficient evidence, however, to prove the existence of the 
other two aggravating circumstances. The supreme court rejected 
the argument that the heinousness of the murder could not be 

: attributed to the 1 isons because they did not personally participate 
and were not present at the lime of the killings. "We reject this 

; notion,” said the court in their opinion in the Ricky Tison case, 
i and construe the statute to mean that a defendant who is actually 
present at the homicide, having actually participated in all the 
events leading thereto, will not be heard to deny that he was not 
causally connected with the crime at the highest level and in the 

I fullest sense.” (J.A. 337-38.) The supreme court also noted that the 
1 trial court was mistaken in its belief that two other statutory 
(aggravating circumstances were not present, prior felony convic- 
i hons involving life sentences, and prior felony convictions invoiv- 
I ing violence. The convictions in Pinal County surrounding the break- 
i out and the capture satisfied those two factors, said the court. The 
I trial court s belief that because those charges could have been filed 
| in the same indictment with the murder charges, and the fact that 
some of those crimes were committed after the murders made them 
non-separate offenses for aggravation purposes, was incorrect, said

i

7

the supreme court.
The supreme court also rejected the contention that the Tisons 

acted only under the "manipulative influence” of their father and 
that each had a non violent character. "The evidence,” said the 
court, "from beginning to end establishes the ruthless character of 
the participants in the offenses;” they "planned the escape for 
months” and "gathered together an arsenal of lethal weapons” that 
were used "against others" during the prison breakout and later to 
kill. As to the contention that the Tisons’ participation in the 
killings was minor, the court quoted the trial judge s ruling and 
said, "Ricky and Raymond Tison associated themselves with others 
who were ready to and had in the past committed savage, homicidal 
acts. They were palpably indifferent to the consequences of their 
lawless conduct. They will not be relieved of the punishment the 
law exacts where the criminal association was formed, supported 
and carried out irrespective of the probable consequences that 
human life would be taken to ensure the success of the criminal 
enterprise.” (J.A. 341.) "That they did not specifically intend that 
the Lyonses and Theresa Tyson die, that they did not plot in 
advance that these homicides would take place, or that they did not 
actually pull the triggers on the guns which inflicted the fatal 
wounds is of little significance." Their participation was substan­
tial.” (J A. 340-41.)

Two years later each of the Tisons filed a petition for post 
conviction relief under Rule 32 of the Arizona Rules of Criminal 
Procedure. Among other things, each argued that the imposition of 
the death penalty was unconstitutional, under Enmund v. Florida, 
458 U S. 782 (1982). The petitions were denied by the trial court 
and the Tisons petitioned the Arizona Supreme Court for review. 
That court denied relief in October 1984. In its opinions, the court 
said that the case was significantly different than Enmund because 
Earl Enmund did not "actually participate in the events leading to 
the death . . .  and was not present at the murder site.” The Tisons, 
said the court, actively participated in the events leading up to the 
deaths, were present during the deaths and did nothing to interfere. 
Although the evidence did not show that the Tisons killed or 
attempted to kill, it did show that they intended to kill. That they 
both planned and prepared for the breakout, that they both held 
guns on prison guards and that they both knew that Cary Tison had 
killed a guard in a prior escape attempt led to the conclusion that



8

they could have anticipated the use of lethal force in the attempt to 
gain freedom. "The dictate of Enmund is satisfied,” concluded the 
court. (J.A. 347.)

SUMMARY OF ARGUMENT

This case is not like Enmund. Although the Tisons were convicted 
upon a theory of vicarious liability, their death sentences were 
imposed only after consideration of their personal participation in 
the murders and the acts that led to them and consideration of the 
culpability of each and the punishment that should attach to it. 
Unlike Enmund, the Tisons were active participants in (heads that 
led to the murders. They knew when they began their spree of 
crimes that guns might be used, they helped their cohorts prepare 
for the murders, they knew what was about to lake place, and then 
they stood by and watched the murders. From these facts one may 
reasonably conclude that the Tisons intended to kill and knew that 
lethal force would be used. Death penalties for them will deter 
others from similar conduct in the future and will serve as just 
desert for the Tisons.

The principles of Godfrey v. Georgia have not been violated. 
These cases are no more like Godfrey than they are like Enmund. 
The aggravating circumstances that were found, murder for pecun­
iary gain and an especially heinous, cruel and depraved murder, are, 
as interpreted by the Arizona Supreme Court, understandable and 
they serve to distinguish those cases in which the death penalty is 
imposed from those in which it is not. Pecuniary gain is not 
present in all or even most felony-murders and these murders, 
unlike those in Godfrey, were especially heinous, cruel and 
depraved because they involved pain and mental distress to the 
victims and depraved and shockingly evil states of mind in the 
perpetrators. Moreover, the result in Godfrey, a reversal of the 
death sentences for failing to prove the only applicable aggravating 
factor, does not obtain here because even if the heinousness factor 
has not been proved, there is another aggravating factor that has 
been proved.

9

ARGUMENT

I THIS CASE IS NOT LIKE ENMIJND.

A. THE ARIZONA SENTENCING PROCEDURE CON 
SIDERED THE PERSONAL INVOLVEMENT OF EACH 
OF THE TISONS.

The guilt of the 1'isons was based upon something other than a 
determination that each deliberately killed. Each jury was 
instructed upon two theories of culpability: (1) a conspiracy during 
which each of the conspirators is liable for the acts of other conspi­
rators, and (2) murder-felony with which a participant in the felony 
is liable for a killing by a co-participant. The prosecutor argued to 
each jury that if they believed the Tisons aided others in the escape, 
the flight to avoid arrest or the robbing and kidnapping of the Lyons 
family and Theresa Tyson and if, during those felonies, the killings 
occurred, then the Tisons were as guilty of the murders that 
resulted as the ones who did the actual killing. The verdicts were 
general; they did not specify the theory upon which the jury held 
the Tisons accountable.

Up to this point in the death sentencing process, Arizona does not 
require any other finding by the jury or a judge about a defendant’s 
individual involvement in a murder. A guilty verdict simply makes 
the defendant eligible to receive the death penalty. Only after the 
verdict, with the finding and weighing of aggravation and mitiga­
tion, does the Arizona system fully focus upon the defendant’s 
individual involvement and the consequences that attach to it. In 
this case that focusing began with a memorandum by the attorney 
for each of the Tisons attacking the existence of aggravating factors 
and setting forth those factors each believed mitigated against a 
sentence of death. The main argument in mitigation advanced by 
each attorney was the minor role each Tison played in the murders 
themselves. Neither attorney argued that his client did not partici­
pate in the prison escape or in the robberies and the kidnappings 
that followed. They stressed the undisputed fact that neither Tison 
pulled the triggers on the shotguns that did the killings. From that 
fad they argued that the participation of each was minor compared 
to the ones who did pull the triggers and because of that minor 
involvement, a sentence of death would be disproportionate. At the



10

ioin, sentencing hearing the defense presented witnesses who test, 
fied that before the prison breakout the Tisons had not been in 
trouble, that they were liked and that they were influenced by the.r

fS The trial court, the senlencer in Arizona’s death penally scheme, 
disagreed with the conclusions argued by the defense. He foun 
,|18, the participation of t-.e Tisons in the criminal enlerpr.se was 
substantial and there was no reason to treat them any differently 
from the others. The fact that each of them told the judge that he 
did not know the killings were going to occur and that he was sorry 
they had occurred made no difference; the judge could f.nd no 
mitigation substantial enough to convince him that death sentences 
should not be imposed.

In the direct appeals the Tisons urged the Arizona Supreme 
Court to review the record and to come to their own conclusion that 
the participation of each was so minor that death was a dispropor­
tionate punishment. The court did review the record but it came to 
the same conclusion the trial judge did, that the participation of 
each Tison was substantial. Although that finding by the Arizona 
Supreme Court would normally be the final word of the slate courts 
on the participation of a defendant, it was not for the Tisons. Two 
years later each Tison Tiled a petition for post-conviction rebel 
raising the proportionality question again but this time urging that 
new authority from this Court, Enmund v. Florida, required that the 
death penalty be set aside. The trial court denied the petitions 
without a hearing, obviously feeling that Enmund did not require a 
different result. The Arizona Supreme Court fell the same way. 
That court once again reviewed the record and concluded that the 
participation of each Tison was so substantial that he would not be 
heard to say that he had no intent to kill.

In view of these things, it cannot reasonably be claimed that 
Arizona has not focused its attention upon the Tisons individual
involvement and their personal responsibility. If this were a habeas 
corpus action, the stale court findings would be entitled to a 
presumption of correctness and the Tisons would have a heavy 
burden to show that the presumption should not be upheld. Even 
though this is not a habeas corpus action, the findings of the 
Arizona courts are entitled to great respect .See Whilus v. Georgia,
385 U S. 545 (1967).

I I

B. THE PARTICIPATION OF THE TISONS IN THE 
MURDERS WAS SUBSTANTIAL.

Earl Enmund was given a death sentence for driving two armed 
robbers to within 200 yards of the scene of a robbery and then 
waiting in the car to help them escape. No regard was paid to 
whether Enmund intended that killings would take place or to 
whether lie anticipated that lethal force would be used. I here was 
even an implicit finding by the Florida Supreme Court that the 
murders during the robbery were spontaneous, precipitated by 
unanticipated armed resistance of the victims. See the companion 
case to Enmund, Armstrong v. State, 399 So.2d 953,963 (f la. 1981), 
cert, denied, 464 U S. 865 (1983). There were no findings by the 
Florida Supreme Court that Enmund knew a murder would occur, 
that he supplied the guns that were used or that he knew of any 
plans by his cohorts to murder. When Enmund’s case arrived in 
this Court, the only culpable act of Earl Enmund in the record was 
his driving the car. Enmund was not at the scene of the murder and 
he did nothing to assist the murderers. The Tisons, however, were 
at the scene and they did assist the murderers. They stripped the 
victims of their belongings, they helped keep the victims at bay 
while their father decided what to do with them, they herded the 
victims into position, then they stood by and watched as they were 
shot. Earl Enmund did nothing like that.

"It would Ire very different,” this Court said in Enmund, ''if the 
likelihood of the killing in the course of a robbery were so substan­
tial that one should share the blame for the killing if he somehow 
participated in the felony.” This appears to be a recognition that in 
some cases the death penally is proper for one who aids in a robbery 
but does not kill. If there are such cases, this is one of them. There 
was nothing more the Tisons could have done to aid the act of 
killing. After placing the victims in the Lincoln, there was nothing 
left to do hut shoot . The Tisons are in the same position as one who 
holds the victim while an accom I*' ice slabs or one who disables the 
victim so the killer may more easily kill. Neither of those actors is a 
direct participant in the killing hut by all accounts and measures 
each is as  culpable and as morally blameworthy as the killer. So are
the Tisons.

The Tisons argue that the Arizona Supreme Court fashioned a 
new and flawed definition of intent when it said that an intent to kill



12

included anticipation llial a \\{c. might lie taken or I lint lellial force 
might he used.4 Hie court did say tlial hut nevertheless they mea­
sured the Tisons’ culpahilily b\ traditional theories of intent, for 
generations people have been held accountable for the conseipieu- 
ces of their voluntary acts. Society will not accept a disclaimer of 
liability by an actor who set the stage for a criminal act, who knew 
his cohorts were contemplating a criminal act and who dill nothing 
when the criminal act took place. In many such situations it is 
presumed he intended those results; in other instances it is 
inferred. However it is slated, the result has been that in some 
situations the law and common sense find an intent, no matter what 
the actor says. The Tisons were every bit as culpable as their father 
and Randy Greenawall. They helped select the killing ground, they 
prepared it, and then they escorted the victims into it. They knew 
their father was contemplating killing because he said he was and 
they could see that he was bothered, perhaps by the fact that the 
baby was there. They knew what he was about to do, they both stood 
by while he decided to do it and then they both watched as he did it. 
They intended the grisly results as much as Kandy Greenawall and 
Gary Tison did.

The inference the Arizona Supreme Court drew about intent is 
the same inference Justice White spoke of in Lockett v. Ohio, 438 
U.S. 586 (1978). lie said, referring to Lockett and Bell v. Ohio, 438 
U.S. 637 (1970), "Of course, the facts of both of these cases might 
well permit the inference that the petitioners did in fact intend the 
deaths of the victims." 438 U.S. at 627. The actions of Bell and 
Lockett were much like the Tisons. Willie Bell and Hall, his accom­
plice, who was armed with a sawed-off shotgun, kidnapped a man, 
drove him to an isolated area and then Hall look the man into a 
forested area out of Bell’s sight. Bell heard the man plead for his life, 
then he heard a gunshot. Hall came back to the car where Bell was, 
reloaded his gun, returned to the forested area, and Bell heard 
another shot. Sandra Lockett suggested to her friends that they rob

4 Interestingly enough, this Court in one sentence in Lnmund, 
458 U.S. at 788, also used "might” when referring to the lethal 
force to be used, "anticipated that lethal force would or might be
used."

a store. Her brother suggested they rob a pawnshop. Since Lockett 
knew theowner she decided not logo in but shedrove the robbers to 
the pawnshop and then wailed outside. When they finished and had 
killed the owner, Lockett drove them away from the scene and hid 
the gun under the seal. If these facts would support an inference of 
an intent to kill by Lockett and Bell, the facts in this case do also.

Other courts faced with similar facts have reached similar con­
clusions. In Louisiana in 1982, Jimmy Wingo and a cohort, Glass, 
escaped from jail, burglarized a home and killed the owners. The 
case for Wingo’s participation in the murders was entirely circum­
stantial: he escaped from jail, he needed money and clothes, he 
appeared at a relative’s home shortly after the burglary with money 
and clothes similar to the ones taken in the burglary, he said he had 
"rohbed” a house, and when he was arrested a fiber was found on 
his pants that matched the fiber of a blanket on the bed where the 
bodies of the victims were found. When arrested he had a pair of 
gloves that matched the print of a fabric left on a dresser in the 
victims' home, and he boasted to an officer that he always wore 
gloves when he committed a crime. There was no direct evidence as 
to who killed the victims or how Wingo participated in the killings. 
One slate’s witness testified that Wingo told her that Glass had gone 
into the house and that he had wailed outside. Nevertheless, the 
jury concluded that Wingo had a specific intent to kill or inflict 
great bodily harm and the Louisiana Supreme Court approved, 
saying "it was certainly reasonable for the jury to conclude that 
defendant’s role was that of an equal partner in all of the crimes 
committed by the two during this episode, including the murders." 
Wingo, said the court, "actively participated in the killing of the 
victims" and the court upheld the death sentence. Stale v. Wingo, 
457 So.2d 1159 (La. 1984), cert, denied, 105 S.Ct. 2049 (1985). 
Early this year, the Fifth Circuit Court of Appeals, paying § 2254 
deference5 to the stale court findings, concluded Enmund had been 
satisfied and refused to disturb the death sentence. If ingo v. Black 
burn, 783 F.2d 1046 (5th Cir. 1986).

In State t White, 470 So.2d 1377 (Fla 1985). Branford While 
and his two associates entered a house intending to rob someone.

5 28 ll.S.C. § 2254(d) (1982).



I t

I hey ransacked I lie house and then discussed whether to kill the 
occupants. While argued against the killings hut the killings 
occurred anyway and he had nothing to do with them. The Florida 
Supreme Court, holding that Enmund did not prohibit a death 
sentence, said as to White’s role, "it can hardly he said that he did 
not realize that lethal force was going to he used in carrying out the 
robbery.” 470 So.2d at 1380.

*" M en v. State, 253 Ca. 390,321 S.E.2d 710 (1984), cert, denied, 
105 S.C . 1774 (1985), Stanley Allen and Woodrow Davis decided 
to rob an old lady They overpowered her and each had intercourse 
with her. Then Davis threw her on the floor and stomped on her, 
killing her. Although Allen had nothing to do with theacl of killing, 
the court said that the death penalty was appropriate because Allen 

was an active participant in the events that led to the victim's 
death.” 321 S.E.2d at 715.

In Selvage v. State, 680 S.W.2d 17 (Tex.Cr.App. 1984), Selvage 
and an accomplice entered a store to rob it. One of the two shot and 
killed a teller and as they fled. Selvage fired at two pursuers. The 
state was never able to determine which of the two robbers shot the 
teller but the Texas Court of Criminal Appeals said that made no 
difference. As to Selvage, the evidence was sufficient "to show that 
his conduct was committed deliberately and with reasonable expec 
tation that death would result” and a death sentence was appro 
priale. 680 S.W.2d at 22.

In Ruffin v. State, 420 So.2d 591 (Fla. 1982), Ruffin assisted in 
the kidnapping of the victim. I hen he, along with his accomplice, 
raped the victim. Ruffin knew that his accomplice was going to kill 
the victim but he did nothing to slop it and, after the killing, he 
continued on with his accomplice in their joint venture. The Flor­
ida Supreme Court agreed with the trial court that these facts 
showed "joint participation in the premeditated murder" and 
upheld a death sentence. 420 So.2d at 594.

In Hall v. State, 420 So.2d 872 (Fla 1982), Hall, the ac 
complice of Ruffin, provided the weapon that was used to kill.6

‘ Hall maintained that Ruffin kdled the woman. Hall i. State. 403 
So 2d 1321 (Ha. 1981) Ruffin maintained that Hall did the killing
Ruffin e. State. 397 So 2d 277 (Fla l(»8l). cert denied 454 I S 882 
(1981)

15

Hall was present at the killing and he aided and abetted in the acts 
that led up to the homicide and the underlying felony. The Florida 
Supreme Court affirmed a sentence of death, saying, "There is no 
doubt in the court’s mind that Hall intended Mrs Hurst’s death.” 
420 So.2d at 874. The Eleventh Circuit refused to disturb Hall’s 
death sentence when the question came before them on a writ of 
habeas corpus. They held that Enmund was satisfied by the facts 
that Hall was present when Hurst was murdered, that he aided in 
her abduction and that his gun was used to kill her. Hall v. IE a in 
wiight, 733 F 2d 766, 771 (Nth Cir. 1984), cert, denied, 105 S Cl 
2344 (1985).7

In People v. Ruiz, 94 III 2d 245, 447 N.E.2d 148 (1982), cert, 
denied, 462 U S. 1112 (1983), Ruiz and his accomplices lured the 
victims into their car where Ruiz watched as his accomplices 
stabbed two of the victims to death. Ruiz then helped take the 
victims’ belongings. The Illinois Supreme Court said that these 
facts supported an inference that he possessed the intent to take 
the lives of the victims” and upheld the death sentence 447 N E 2d 
at 158.

In Cave v. State, 476 So.2d 180 (Fla. 1985), Cave wielded a gun 
during the robbery of a store, was present when the clerk was 
abducted, heard her plead for her life and was present when others 
slabbed and shot her. Under those circumstances, said the Florida 
Supreme Court, it cannot be reasonably said that appellant did not 
contemplate the use of lethal force or participate in or facilitate the 
murder” and the court upheld a sentence of death for Cave 476 
So.2d at 187.

In Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983), cert, 
denied. 465 U S. 1051 (1984), the court said:

Although perhaps only two of the appellants were in the 
bedroom when Mi. Lehman was killed, it cannot be 
ignored that when a group of individuals agree to execute 
a criminal enterprise involving the forced, nighttime

7 I he case was reversed in part on other issues, 733 F.2d at 778.



16

entry of a private dwelling, known to be occupied, wear­
ing masks and armed with pistols, intent on robbery, it 
follows that murder is a most probable consequence. We 
tbink that likelihood of a homicide under the circum­
stances is so substantial as to bring this case clearly 
within the quoted exception of the Enmund decision on 
those circumstances alone. Added to that is the evidence 
that murder was plainly contemplated by appellants 
(they discussed the necessity of murder if they met 
resistance). 280 Ark. at 84, 650 S.W.2d at 687.

In People v. Davis, 95 Il!.2d 1,447 N E.2d 353 (1983), cert, denied, 
464 U.S. 1001 (1983), Enmund was distinguished and the death 
penalty was upheld even though Davis had nothing to do with the 
act of killing. The killing occurred during a burglary, and at the time 
Davis’ accomplice killed the victim, Davis was carrying stolen 
property to his car. From these facts and the fact that in a similar 
robbery 2 weeks earlier, Davis murdered the homeowner, the Illi­
nois Supreme Court said that "the conclusion is inescapable that 
defendant must have anticipated the killing of the victim in the 
instant case.” 95 Ill.2d at 52, 447 N.E.2d at 378.

And finally, in Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985), 
although there was evidence that Willie Ross shot and killed the 
officer, the circuit court said that even if that evidence was dis­
counted, a death sentence for Ross was proper. Ross and three 
accomplices, masked and armed, enterd a home looking for money. 
Then Ross and Turner kept the occupants hostage while two other 
accomplices left to look for more money. An officer entered the 
home and was shot. The state showed by statements Ross made later 
and ballistics tests on the guns he was carrying that he was probably 
the one who shot the officer. A death sentence was proper, said the 
circuit court, because Ross was "actively engaged in furthering the 
course of events that led directly to Meredith's murder, whether or 
not he actually pulled the trigger.” The court said that "it would be 
incredible to believe that appellant did not contemplate that lethal 
force would be used either by himself or his accomplice.” 756 F.2d 
at 1489"

* The case was remanded to the district court on a point relating 
to jury composition 756 F.2d at 1484

17

The facts in all of these cases are appallingly similar. They show 
an intent to kill, an anticipation that someone would be killed or a 
realization that lethal force was going to be used. The Tisons knew 
all of these things.

Even if the definition of intent used by the Arizona Supreme 
Court and the conclusions that flowed from it were flawed, the 
Tisons fare no better because the facts show that each anticipated 
all during their joint venture that lethal force would be employed. 
In their planning for the prison breakout and the expected escape, 
the Tisons gathered a number of guns, sawed the barrels off the 
shotguns and also gathered ammunition for the guns. As soon as 
they got inside the prison, they armed their father, a man they knew 
had killed a prison guard in a prior escape attempt and they also 
armed a cohort of their father, Randy Greenawalt.9 Although the 
guns were not fired until the murders, their apparent lethal force 
was used to subdue prison guards and visitors and then to subdue 
the Lyons family and Theresa Tyson. Raymond acknowledged after 
their capture that they would have used the guns if they had to. 
They had them, Raymond said, "In case something happened." 
(J.A. 242.) The Tisons also knew when they started out that there 
was a possibility of killing. "Yea, there was always the possibility, 
like we knew in dad’s 1967 escape, he killed that guard. We knew he 
was in there on a murder charge. There was a possibility we didn't 
want to believe it." (J.A. 243, 249.) Then at the scene of the 
murders when they heard their father say that he was thinking of 
killing the Lyons family and Theresa Tyson, when they could see 
that he was struggling to make a decision and finally when they saw 
him and Greenawalt position themselves beside the Lincoln, they 
knew, they must have known, that lethal force was about to be used.

The Tisons also argue that the Arizona Supreme Court upheld 
their death sentences on direct review even though they found that 
the Tisons did not specifically intend that the victims die, did not 
plot the killings in advance, and did not pull the triggers. That

9 Randy Greenawalt was also in prison on a murder conviction. 
He had murdered twice before. See State t>. Greenawalt, 128 Ariz. 
150, 624 P.2d 828 (1981), cert, denied, 454 U.S. 822 (1981).



18

holding, they argue, was "precisely the conclusion lhal this Court 
reversed in Enmund." (Petitioners’ Brief, at 28.) But the rationale 
for the decision does not run counter to Enmund. When the 
supreme court used those words it was summarizing the arguments 
the Tisons had made. Then the court said that the fact that the 
Tisons did not do those things was of "little significance" in view of 
the roles they took in the events that led immediately to the 
murders. "The deaths would not have occurred but for their assist­
ance,” said the court, "If a crime is caused to occur by an accessory 
but the accessory is not the actual perpetrator, this fact will not 
alone constitutionally prevent punishment of the accessory to the 
same extent as the perpetrator since both have caused the death to 
occur.” (J.A. 340 41.) That is not the conclusion this Court rev­
ersed in Enmund.

C. DEATH SENTENCES IN THESE CASES WILL SERVE 
THE SOCIAL PURPOSES OF DETERRENCE AND 
RETRIBUTION.

In Enmund this Court said that a death penalty serves two social 
purposes, retribution and deterrence of capital crimes by would-be 
offenders, and unless the penalty contributes measurably to one of 
these goals it is useless and unconstitutional. Neither of those goals 
was served by sentencing Earl Enmund to death because he didn’t 
kill, he had no intention of killing, he didn’t know others were going 
to kill and he had nothing to do with the killings. With lhal lack of 
intent and lack of participation it can hardly be assumed, said the 
Court, that the possibility of a death sentence would have entered 
Enmund’s mind when he decided to rob. But that possibility did 
enter theTisons’ minds for after putting together an arsenal for the 
escape and arming their father, a convicted murderer, they asked 
him topromise that no one would be hurt. (J.A. 242.) The fact that 
the risk did not deter the Tisons from going ahead does not prove 
that such a risk will not deter others in the future.

Consider the effect something less than death sentences for the 
Tisons will have on people in the future who are planning similar 
activities. The risk they face will be far less. They will rob and 
kidnap to further their ends and run no risk of the ultimate penalty

19

as long as they do not perform the act of killing. That would not be 
just.

Retribution, said this Court, depended upon Enmund’s culpabil­
ity, his "intentions, expectations and action.” 458 U.S. at 800. 
These are the same things that guided the Court’s decision on 
deterrence and for Earl Enmund the death penalty was not a just 
desert. It is for the Tisons, however, because they were partici­
pants, their participation was substantial, and their actions were as 
culpable as those of Randy Greenawalt and Gary Tison. Anything 
less than death for them would not be a just desert.

II. GODFREY V. GEORGIA HAS NOT BEEN VIOLATED.
The Tisons maintain that in sentencing them to death the Ariz­

ona courts did not apply a constitutional construction to the two 
aggravating circumstances that were found and thus there is no 
principled way to distinguish their cases from other murder cases in 
which death penalties were not imposed. They argue that the 
aggravating circumstance of pecuniary gain10 11 is present in virtually 
every felony-murder case and thus does not serve as a feature 
distinguishing one murder case from another.11 But, as the opinions 
of the Arizona Supreme Court show, pecuniary gain is not part of 
virtually all felony-murders and the yardstick the court used in this 
case does provide a way of distinguishing one case from another. 
First, the motive to gain something of pecuniary value is only a 
small part of the Arizona murder-felony statute. One may be eligible 
for the death penalty by virtue of the murder-felony rule if the 
killing occurred during the following felonies: sexual assault,

10 "The defendant committed the offense as consideration for 
receipt, or in expectation of the receipt, of anything of pecuniary 
value." Ariz.Rev.Slat. Ann. § 13-703 (F)(5).

11 This point was not raised in state court on direct appeal or in 
the petition for post-conviction relief. The only thing argued about 
this aggravating factor was that it applied to hired killers, not to 
armed robbers like the Tisons.



20

sexual conduct, molesting of a child, abusing a child, kidnapping, 
burglary, arson, escape, certain drug offenses and robbery. Of these 
ten felonies, only one, robbery, invariably involves a motive to gain 
something of pecuniary value. Two others, kidnapping and burglary 
may involve pecuniary gain, and in the remaining six pecuniary 
gain has nothing to do with the crime. This aggravating factor then 
does serve as a measure to distinguish "the few cases in which (the 
penalty) is imposed from the many cases in which it is not. 
Godfrey, 446 U.S. at 427. And there is very little that is vague about 
this aggravating circumstance. One who murders to gain something 
of pecuniary value is eligible for the death penalty. It is not just the 
fact that something of pecuniary value was gained as a result of the 
murder That will not do, the Arizona Supreme Court has said. 
There must be something more; the receipt of the thing of value 
must be a cause of the murder. Proving a robbery, for instance, does 
not automatically prove this aggravating factor. State v. Carriger,
143 Ariz. 142,161,692 P.2d 991,1010 (1984), cert, denied, 105S.G. 
2347 (1984). And, on occasion, the supreme court has found that 
although something of value was gained by the defendants as a 
result of the murder, the facts did not show that the receipt was a 
cause of the murder and the supreme court has invalidated the 
sentencer's finding of pecuniary gain aggravation. State v. James, 
141 Ariz. 141,685 P.2d 1293 (1984),cert, denied, 105S.Ct. 398,415 
(1984); State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), cert, 
denied, 105 S.Ct. 1775 (1985); State v. Madsen, 125 Ariz. 346,609 
P.2d 1046 (I960), cert, denied, 449 U.S. 873 (1900).

The Tisons argue that this case is no different from Godfrey in 
regard to the second aggravating factor found by the Arizona 
Supreme Court, that the murders were committed in an "especially 
heinous, cruel or depraved manner. They note that the Georgia 
aggravating factor in Godfrey is "strikingly parallel to Arizona s, 
and it is. They then go on to conclude two things: (1) that because 
the acts of killing were performed by others, Enmund precludes the 
stale from relying upon this as an aggravating factor as to them, and 
(2) even if this factor can be considered against them, these killings 
were no different from Godfrey’s and the result must be the same, 
the death sentences must be reversed.

First, Enmund does not preclude the slate from considering as

21

aggravation against the Tisons that the fact that the murders were 
especially heinous, cruel and depraved. Enmund does not attempt o 
tell states what it can and cannot define as aggravating and it does 
not attempt to tell slates who and who may not be eligible for 
consideration of the death penally. What it does is tell stales that of 
those who qualify to be considered, none may be executed excep 
those who killed, attempted to kill, intended to kill, or contemplate! 
that lethal force would be used or life would be taken. If the manner 
in which the killing was carried out could be used as aggravation 
against only the killer, then an accomplice who is indisputably 
every bit as culpable, legally and morally, as the killer will be freed 
of the consequences of an aspect of the case that he helped to create. 
That would turn the notion of personal culpability on its head.

Second, this case is not the same as Godfrey. Godfrey s death 
sentence was reversed because the only aggravating factor that 
supported it was invalidated. Once that factor was removed, there 
was nothing left. As this Court said in the beginning of its analysis 
"the Georgia Supreme Court has affirmed a sentence of death based 
upon no more than a finding that the offense was 'outrageously or 
wantonly vile, horrible and inhuman.’ ” 446 U.S. at 428. In this 
case, "especially heinous, cruel and depraved” is not the only 
aggravating factor that supports the Tisons’ death sentences. Both 
the trial court, the sentencer, and the Arizona Supreme Court 
found a second aggravating factor, that the murder was for pecun­
iary gain. The supreme court also held that there were two more 
factors the trial court should have found but did not prior felony 
convictions with life sentences, and prior felony convictions 
involving violence.'3 So, even if the heinousness factor is invalid,

n Under this Court’s recent decision in Poland v. Arizona, No. 
85-5023 (May 5, 1986), these two aggravating factors have not been 
lost to double jeopardy principles.

13 "The defendant had been convicted of another offense in the 
United Slates for which under Arizona law a sentence of life 
imprisonment or death was imposable.” Ariz.Rev.Slat.Ann. § 13
703 (F)(1). , ■ . f ,i

"The defendant was previously convicted ol a lelony in the 
United States involving the use or threat of violence on another 
person.” A riz .Rev.Stat.Ann. § 13-703 (F)(2).



22

there is aggravation left to make theTisons eligible for consideration 
for the death penalty and thus reversal would not be required. See 
Zant v. Stephens, 462 U S. 362 (1982); State v. Poland, 144 Ariz. 388, 
698 P.2d 183 (1985), affirmed by this Court May 5, 1986, No.85- 
5023; State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985); State v. 
Smith, 146 Ariz. 491,707 P.2d 289 (1985) ;Stoie v. James, 141 Ariz. 
141,685 P.2d 1293 (1984),cert, denied, 105S.Ct. 398,415 (1984); 
Slate v. McCall, 139 Ariz. 147,677 P.2d 920 (1983), cert, denied, 104 
S.Ct. 2670 (1984).:4

The heinousness factor does withstand Godfrey scrutiny. A large 
part of Georgia’s problem in Godfrey was that by the concessions of 
the prosecutor in his argument to the jury, the wording of the jury’s 
verdict, and the supreme court’s cursory review of the aggravating 
factor, the statutory aggravating circumstance that the murder was 
"outrageously or wantonly vile, horrible or inhuman in that it 
involved torture, depravity of mind, or an aggravated battery to the 
victim” had been winnowed down to a murder "outrageously or 
wantonly vile, horrible or inhuman." Those are the words the jury 
used in its verdict. The state prosecutor conceded in his argument 
to the jury that the case did not involve torture or an aggravated 
battery, the trial court certified to the supreme court that there was 
no physical harm or torture and the supreme court affirmed with 
the simple statement that the evidence supported the jury’s finding. 
The Georgia system was not working with all of its parts; it was 
trying to decide whether a perfectly constitutional aggravating 
factor was present but it was not using the tools necessary to 
produce a reliable decision. That is not the case with the Tisons. 
Like the Georgia Supreme Court had done, the Arizona Supreme

M But see State v. Gillies, 135 Ariz. 500,662 P.2d 1007 (1983), cert, 
denied, 105 S Ct. 1775 (1984), where the Arizona Supreme Court 
struck three of the four aggravating circumstance; found by the 
trial court and, noting that the trial court had found mitigating 
circumstances but not sufficiently substantial to call for leniency, 
remanded to the trial court for a reweighing of aggravation and 
mitigation and a redeterminalion of penally. Also see Barclay v. 
Florida, 463 U S 939 (1983).

23

Court crafted a workable definition of "especially heinous, cruel or 
depraved” from a number of different fact situations over the years 
and that definition was presented to the sentencer and discussed in 
memoranda by both the state and the defense. The judge had asked 
for a memorandum from each side on the question of heinousness 
because he was "concerned with what circumstances fall within 
heinous, cruel, and depraved manner.” (Transcript of Aggravating 
Hearing and Sentencing, at 147.) The trial court set forth on the 
record the facts that proved the crimes were especially heinous 
(J.A. 282-83), the supreme court discussed the definition and the 
facts in prior cases in their opinions (J.A. 303-04, 334-38), and the 
supreme court conducted a proportionality review comparing this 
case with other cases with similar aggravating circumstances before 
the court affirmed the death sentences. (J.A. 350, 368.) Thus the 
Arizona courts used the definition of heinousness they had crafted 
and came up with a result that is in proportion to other cases and 
will serve as a signpost to distinguish future cases. In Arizona, 
cruelty involves "pain and the mental and physical distress visited 
upon the victims,” and heinous and depraved "go to the mental 
state and attitude of the perpetrator reflected in his words and 
actions.” State v. Ceja, 126 Ariz. 35,39,612 P.2d 491,495 (1980). 
SeeStatev. Gretzler, 135 Ariz. 42,659P.2d 1 (1983),cert, denied,461 
U S. 971 (1983). As the court pointed out, cruelty was shown in this 
case by the physical pain suffered by Theresa Tyson as she crawled a 
good distance away from the car and bled to death, by the mental 
pain and anguish the victims suffered by being kidnapped at gun­
point, anticipating that they were about to be killed, and by seeing 
other family members murdered. The heinous and depraved stale of 
the perpetrators was shown by the facts that a 2-year-old child was 
gunned down in the arms of his mother, the victims were helpless 
with no means of escape and there was no apparent reason for the 
killings and the 18 shotgun blasts other than a desire to kill. These 
things serve to define those cases that lie ' at the core and not the 
periphery” of capital murder. Harris v. State, 237 Ga. 718,733,230 
S.E.2d 1, 11 (1976), quoted in Godfrey v. Georgia, 446 U S. at 430.



24

CONCLUSION

The Tisons planned the prison breakout, they gathered the guns 
and ammunition used in the breakout and escape, they helped stop 
the victims’ car, they herded the victims at gunpoint into the 
Lincoln and then they watched as they were murdered. Their 
participation in the murders was substantial and deserves the death 
penalty. The judgements of the Arizona Supreme Court affirming 
the death sentences should be affirmed.

Respectfully submitted,

ROBERT K. CORBIN 
Attorney General of the 
Stale of Arizona

WILLIAM J. SCHAFER III 
Chief Counsel 
Criminal Division

Attorneys for RESPONDENT

May 30. 1986

(9228D)