Tison v. Arizona Brief for Petitioners

    N o. 84-6075

IN  T H E

Supreme Court of tlje ftlmteb &tntetf
October Term, 1985

Ricky Wayne T ison and Raymond Curtis T ison,
Petitioners,

v.

State of Arizona,
Respondent.

On Writ Of Certiorari Tb The Supreme Court Of Arizona

B R IE F  F O R  P E T IT IO N E R S

Alan M. Deusiiowitz
232 Brattle Street
Cambridge, Massachusetts 02138

Stephen H. Oleskey 
Cynthia O. Hamilton 
Ian Crawford 
Leila R. Kern 
Hale and Dorr 
60 State Street 
Boston, Massachusetts 02109 

Counsel fo r Petitioners

Susan Estricii 
Nathan Deusiiowitz 
Of Counsel

PRESS OF nAM I’UINTINC. IIVATTSVII.I.F, MO 20781 CHID 8fil M«2



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QUESTIONS PRESENTED

1. Is the December 4, 1984, decision of the Arizona 
Supreme Court to execute these petitioners in conflict with the 
holdings of this Court where, in words of that court, petitioners 
“did not specifically intend that the [victims] die, . . . did not 
plot in advance that these homicides would take place, or . . . 
did not actually pull the triggers on the guns which inflicted the 
fatal wounds,. . . ” but where that court fashioned an expanded 
definition of “ intent to kill" to include any situation where a 
non-triggerman "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”?



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t a b l e  o f  c o n t e n t s
Page

Question Presented..........................................
Tahle of Authorities........................................  ■,1
Opinions Below.................................................
Jurisdiction.....................................................  *
Constitutional and Statutory Provisions

Involved.................................................... 1
Statement of the Case .....................................  2
Summary of the Argument...............................  14
Argument........................................................  15

I. The Execution of Raymond and Ricky Tison 
Would Violate The Eighth Amendment and 
This Court’s Decision I n Enmund v. Florida 15

A. Enmund v. Florida Requires Reversal ........ 16
B. The Arizona Supreme Court Violated Enmund

in Defining Intent as Foresight of a Possibility 20
II. The Execution of Raymond and Ricky Tison 

Would Violate The Eighth Amendment and 
This Court's Decision in Godfrey v. Georgia 31
A. A Comparison Between the Circumstances in

Godfrey and in the Instant Case Establishes 
That There Is "N o  Principled Way to Dis­
tinguish This Case, in Which the Death Penalty 
Was Imposed, from the Many Cases in Which It 
Was Not” And Thus Establishes That The Ari­
zona Court Did Not Apply A  Constitutional 
Construction Tb Its Death Penalty Statute .. 31

B. The Aggravating Factors Relied on by the A ri­
zona Courts Were A t Least as Standardless, 
Unchanneled and Uncontrolled as the Ones 
Unconstitutionally Relied on in Godfrey.....  38

Conclusion.......................................................  43
Statutory Appendix..........................................  la

ii
iii

TA B LE  O F AU TH O R IT IE S
Page

Acker v. Slate, 26 Ariz. 372, 226 P. 199 (1924)...........  19 n.22
Cabana v. Bullock,____ U .S .-------, 106 S.Ct. 689

(1986).....................................................................  passim
Carlos v. Superior Court, 35 Cal. 3d 131, 197 Cal. Rptr.

79, 672 P.2d 862 (1983).......................................... 26 n.30
Chaney v. Brown, 730 F.2d 1334 (10th Cir.), cert, denied,

____ U.S______ , 105 S.Ct. 601 (1984)................,.  26 n.29
Coker v. Georgia, 433 U.S. 584 (1977)................................  30
Enmund v. State, 399 So.2d 1362(1981), rev'd., 458 U.S.

782(1982)........................................................  16, 16 n. 18
Enmund v. Florida, 458 U.S. 782 (1982)...................  passim
Fisher v. United States, 328 U.S. 463, reh. denied, 329

U.S. 818(1946)..........................................................  29
Fleming v. Kemp, 748 F.2d 1435 (11th Cir. 1984) reh. 

denied, 765 F.2d 1123 (U th  Cir. 1985), cert, denied,
____ U.S______ , 106 S.Ct. 12S6 (1986).................  26 n.29

Furman v. Georgia, 408 U.S. 238, reh. denied, 409 U.S.
902(1972)................................................................  28,32

Godfrey v. Georgia, 446 U.S. 420 (1980).................... passim
Greenawalt v. Ricketts, No. 84-2752 (9th Cir. March 20,

1986).....................................................................  35 n.39
Gregg v. Georgia, 428 U.S. 153 (1976).......................... 29, 32
Hatch v. State, 662 P.2d 1377 (Okla. Corn. App. 1983), 

reh., 701 P.2d 1039 (Okla. Crim. App. 1985), cert..
denied____ U.S______ , 106 S.Ct. 834 (19861 • • • 26 n.30

Hyman v. Aiken, 777 F.2d 938 (4th Cir. 1985)........... 26 n.29
Lockett v. Ohio, 438 U.S. 586 (1978)..............  20, 22, 23 n.25
Mullaney v. Wilbur, 421 U.S. 684 (1975)......................... 29
Nyc & Nissen v. United States, 336 U.S. 613 (1949). 24 n.25 
People v. Aaron, 409 Mich. 672, 299 N.W.2d 304

(1980).....................................................................  24 n.25
People v. Dillon, 34 Cal. 3d 441, 194 Cal. Rptr. 390, 668

P.2d 697 (1983)............    27 n.30
People v. Garcia, 36 Cal. 3d 539, 205 Cal. Rptr. 265, 684

P.2d 826 (1984), cert, denied, ____  U.S. ____ , 105
S.Ct. 1229(1985)................................................... 26 n.30

People v. Garcwal, 173 Cal. App. 3d 285, 218 Cal. Rptr. 
690(1985)..............................................................  26 n.30



iv

Thble of Authorities Continued
i Page

People v. Jones, 94 Ill.2d 276, 447 N.E.2d 161 (1982), cert.
denied, 464 U.S. 920 (1983)..................................  27 n.30

People v. Tiller, 94 Ill.2d 303, 447 N.E.2d 174 (1982), cert.
denied, 461 U.S. 944 (1983).................................. 27 n.30

Reddix v. Thigpen, 728 F.2d 705 (5th Cir.), reh. denied,
732 F.2d 494 (5th Cir.), cert, denied,----- U.S-------- ,
105 S.Ct. 397 (198-1).............................................  26n.29

Robinson v. California, 370 U.S. 660 (1962)...................  29
Sander si Miller v. Logan, 710 F.2d 645 (10th Cir.

1983)................ ................................................... 19 n.22
Slate v. Bishop, 144 Ariz. 521, 698 P.2d 1240 (1985).. 27 n.32 
State v. Bracy, 145 Ariz. 520, 703 P.2d 464 (1985), cert.

denied, 1___U.S______ , 106 S.Ct. 898 (1986).... 27 n.32
State v. Emery, 141 Ariz. 549, 688 P.2d 175 (1984)... 27 n.31 
State v. Fisher, 141 Ariz. 227, 686 P.2d 750, cert, denied,

____U.S_______105 S.Ct. 548 (1984)..................... 28 n.32
State v. Gillies, 135 Ariz. 500, 662 P.2d 1007 (1983), cert.

denied,____ U.S______ , 105 S.Ct. 1775 (1984)... 28 n.32
Slate v. Greenawalt, 128 Ariz. 150, 624 P.2d 828, cert, 

denied, 454 U.S. 882 (1981), rev'd. sub nom, Green­
awalt v. Ricketts, No. 84-2752 (9th Cir. March 20,
1986)....................................................................  10 n.15

State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118, cert, 
denied, sub nom, Tison v. Arizona, 454 U.S. 848
(1981).............................................................  2 n.l, 7 n.9

Slate v. Harding, 141 Ariz. 492, 687 P.2d 1247 (1984) 28 n.32 
State v. Hoojwr, 145 Ariz. 538, 703 P.2d 482, cert, denied,

____U.S______ , 106 S.Ct. 834 (1986).............  27-28 n.32
State v. James, 141 Ariz. 141, 685 P.2d 1293, cert, denied,

____U.S_______ 105 S.Ct. 398 (1984)....................  28 n.32
State v. Jonlan, 137 Ariz. 504 , 672 P.2d 169 (1983)... 28 n.32
Stale v. Libberton, 141 Ariz. 132, 685 P.2d 1284

(1984) .................................................................  28 n.32
State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670,

cert, denied,____ U.S. 106 S.Ct. 339
(1985) .................................................................  28 n.32

State v. McDaniel, 136 Ariz. 188, 665 P.2d 70
0983)...................................................... 20 n.23, 27 n.31

State v. Peterson, 335 S. E.2d 800 (S.C. 1985)...........  26 n.30

v

Ihhle o f Authorities Continued
Page

State v. Poland, 144 Ariz. 388,698 P.2d 183, cert, granted,
____ U.S______ , 106 S.Ct. 60 (1985)...........'........  28 n.32

State v. Richmond, 136 Ariz. 312, 666 P.2d 57, cert.
denied, 464 U.S. 986 (1983).................................. 28 n.32

State v. Smith, 138 Ariz. 79, 673 P2d 17 (1983), cert.
denied, 465 U.S. 1074 (1984)...............................  28 n.32

State v. (Raymond Curtis) Tison, 129 Ariz. 546, 633 P.2d 
355 (1981), cert, denied, 459 U.S. 882, reh. denied,
459 U.S. 1024(1982).............................................  1

State v. (Raymond Curtis) Tison, 142 Ariz. 454, 690 P.2d
755 (1984), cert, granted, ____  U .S. ____ , 54
U.S.L.W. 3561 (1986)...............................................  1

State v. (Ricky Wayne) Tison, 129 Ariz. 526, 633 P.2d 335 
(1981), cert, denied, 459 U.S. 882, reh. denied, 459
U.S. 1024 (1982)......................................................... 1

State v. (Ricky Wayne) Tison, 142 Ariz. 446, 690 P.2d 747
(1984), cert, granted,____ U .S ._____ , 54 U.S.L.W.
3561(1986)..................................................................  1

State v. Tison, CR. 108352 (Maricopa County)..............  3 n.3
State v. Villafuente, 142 Ariz. 323, 690 P.2d 42 (1984), cert.

denied, _ _  U.S_____ , 105 S.Ct. 1234 (1985)... 28 n.32
Weems v. United States, 217 U.S. 349 (1910).................  29

Constitutional Provisions:
U.S. Constitution amendment V I I I ...................  1, 15, 30, 31
U.S. Constitution amendment X IV ................................  2, 31

Statutes:
Ala. Code §§ 13A-6-3, 13A-5-6 (1975, 1981 Supp.).. . .  24 n.26 
Ariz. Rev. Slat. Ann. §§13-139, 13-140, 13-451, 13-452,

13-453, 13-454 (1956, Repealed 1978)...............  2, 18, 40
Ark. Stat. Ann. §§41-1504, 41-901 (1947, 1985 Supp.) 24 n.26
Conn. (Jen. Slat. Ann. §§53a-56a, 53a-35a (1958)___ 24 n.26
Ga. Code § 27-2534.1(b)(7) (1978)....................................  38
Hawaii Rev. Stat. §§707-701, 707-702, 706-660(1976,1984

Supp.)......................................................  24 n.26, 24 n.27
111. Ann. Slat. ch. 38 §§9-3, 1005-8-1 (1979, 1982 and 1985

Supp.).................................................................... 24 n.26
Ind. Code Ann. §§35-42-1-5, 35-50-2-6 (1978)...........  24 n.26



VI

Thble of Authorities Continued
i Tage

Kan. Stat. Ann. §§21-3404, 21-4501 (1981, 1985
Supp.)................................................................... 24 n.2fi

Kv Rev. Stat. §§507.020, 507.040, 532.000
(1985).....................................................  24 n.26, 24 n.27

Miss. Ann. Code §§99-19-101(7) (1985 Supp.)..........  24 n.27
Mo. Ann. Stat. §§505.024, 558.011 (1979 and 1980

Supp.)...................................................................  24 n.2G
Nev. Rev. Stat. 200.033(4) (1983).................  24 n.2G, 24 n.27
N H. Rev. Stat. Ann. §630:1-B (1979 and

1983 Supp.)............................................................ 24 n.27
N.J. Stat. Ann. §§2c:ll-4, 2c:43 6 (1982)...................  24 n.2G
N.D. Cent. Code §§ 12.1-10-02, 12.1-32-01 (1985).... 24 n.26
Ohio Rev. Code Ann. §§ 2903.01,2903.04 (1982 and Supp.) 
....................................................................................  24 n.27
Or. Rev. Stat. §§ 163.125, 161.605 (1983)...................  24 n.26
Pa. Stat. Ann. tit. 18, §§2504, 1104 (1983).................  24 n.26
S.D. Codified Laws Ann. 22-16-20, 22-6-1 (1979 and 1984

Supp.)...................................................................  24 n.26
U'x. Penal Code Ann. §§ 19.05, 12.34 (1974)............  24 n.26
Wash. Rev. Code Ann. §§9A.32.060, 9A.20.021 (1977 and

1986 Supp.)............................................................  24 n.2G
Wis. Stat. Ann. §§940.06, 939.50(1982)..................... 24 n.26

Other Authorities
ALI Model Penal §210 Code and

Commentaries.............  17, 19, 20 n.22, 22 n.25, 23 n.26
Corpus Juris Secundum, Criminal Law §§ 87, 88----  19 n.22
Corpus Juris Secundum, Homicide § 9(d)...................  19 n.22
Roth and Sundby, “The Felony-Murder Rule: A  Doctrine 

at Constitutional Crossroads,” 70 Cornell L.Rev. 446 
(1985).....................................................................  24 n.27

OPINION BELOW

The opinions of the Supreme Court of Arizona denying post­
conviction relief and affirming petitioners’ convictions of felony 
murder and sentences of death are reported in Stale v. Ricky 
Wayne Tison, 142 Ariz. 446, 690 P.2d 747 (1984) (J.A. 302-79) 
ami State v. Raymond Curtis Tison, 142 Ariz. 454,690 P.2d 755 
(1984) (J.A. 344-61). The opinions of the Supreme Court of 
Arizona originally affirming petitioners’ convictions of felony 
murder and sentences of death are reported in State v. Ricky 
Wayne Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert, denied, 
459 U.S. 882, reh. denied, 459 U.S. 1024 (1982) (J.A. 309-43) 
and State v. Raymond Curtis Tison, 129 Ariz. 546,633 P.2d 355
(1981) , cert, denied, 459 U.S. 882, reh. denied, 459 U.S. 1024
(1982) (J.A. 290-308).

JURISDICTION

The jurisdiction of this Court rests upon 28 U.S.C. § 1257(3), 
the petitioners having asserted below and asserting here a 
deprivation of rights secured by the Constitution of the United 
States.

The original judgments of the Supreme Court of Arizona 
affirming the petitioners’ convictions and sentences were 
entered on July 9, 1981. Timely petitions for rehearing were 
denied by the Supreme Court of Arizona on September 10, 
1981. The Arizona Supreme Court denied post-conviction 
relief on October 18, 1984. Timely petitions for reconsideration 
were denied by the Arizona Supreme Court on December 4, 
1984. The joint petition for certiorari was filed on January 16,
1985 and granted on February 24, 1986. ----- U.S. -------, 54
U.S.L.W. 3561 (U.S.).

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

This case also involves the Eighth Amendment to the Consti­
tution of the United States, which provides:

Excessive bail shall not be required nor excessive fines 
imposed, nor cruel and unusual punishment inflicted. . . .



2

and the Fourteenth Amendment to the Constitution of the 
United States, which provides, in pertinent part:

No State shall make or enforce anv law which shall abridge 
the privileges or immunities of the citizens of the United 
Slates; nor shall any State deprive any person of life, 
liberty, or property without due process of law; nor deny 
to any person within its jurisdiction the equal protection of 
the laws.

This case also involves the following provisions of the stat­
utes of the Slate of Arizona, which are set forth in the Stat­
utory Appendix to this brief: Ariz Code of 19.19,43-116, in part, 
Ariz. Rev. Stat. Ann. § 13-139 (1956) (Repealed 1978); Laws of 
1912, Ch. 35, §25, Ariz. Rev. Stat. Ann. § 13-140 (1956) 
(Repealed 1978); Ariz. Code of 1.939, 43-2901, Ariz. Rev. Stat. 
Ann. § 13-451 (1956) (Repealed 1978); Ariz. Code of 1939, 
43-2902, Ariz. Rev. Stat. Ann. § 13-452 (Supp. 1957-1978) 
(Amended 1973) (Repealed 1978); Ariz. Code of 1939, 43-2903, 
Ariz. Rev. Stat. Ann. § 13-453 (Supp. 1957-1978) (Amended 
1973) (Repealed 1978); Laws of 1973, Ch. 138, §5, Ariz. Rev. 
Stat. Ann. § 13-454 (Supp. 1957-1978) (Repealed 1978). These 
statutes were in effect at the time of the crimes for which the 
petitioners stand convicted. The statutes were then repealed 
and replaced when Arizona revised its criminal code, effective 
October 1, 1978.

STATEMENT OF THE CASE

Petitioners Ricky and Raymond Tison were sentenced to 
death for killings they neither committed nor specifically 
intended. Ricky and Raymond were convicted of breaking their 
father Gary Tison and his jailmate Randy Greenawalt out of 
prison.1 They were 18 and 19 years old at the time of the

'In a separate trial from those in which they received the death penalty, 
Ricky and Raymond Tison were both convicted in Pinal County, the site of the 
prison, of aiding and assisting in an esca|>e, assault, possession of a stolen 
vehicle, and unlawful (light from a law enforcement vehicle. They received 
concurrent sentences of 30 years to life for each of the assaults, and sentences 
of four to five years for each of the other offenses, to be served concurrently 
with each other but consecutively to the assault sentences. Stale v. Green- 
nwalt, 123 Ariz. 388,026 P.2d 118,121, cert. den. tub nom.. Titan v. Arizona, 
•151 U S. 818 (1081). Throughout this litigation. Petitioners have raised

3

breakout. Neither had any prior felony convictions.2 They 
lived at home with their mother and older brother Donald, and 
visited their father nearly every week during his eleven-year 
imprisonment preceding the breakout. (Transcript of March 
14, 1979 at 103, 105-06, 110, 112, 124.) During those eleven 
years, Gary Tison was a model prisoner who ran the prison 
newspaper and assisted the prison administration in quieting a 
riot and strike in 1977. (Transcript of March 14,1979 at 127-32, 
137-38.)

Despite his excellent prison record, Gary Tison was refused 
parole. (Tr. March 14,1979 at 140.) He planned an escape, with 
the help of his brother Joseph, his three sons, their mother and 
other relatives.3 According to the psychologist appointed by 
the sentencing court to evaluate petitioners prior to sentenc­
ing, “there was a family obsession, the boys were ‘trained’ to 
think of their father as an innocent person being victimized 
. . .” (See, infra, n.16).4 Originally it wad not intended for the 
three sons to participate in the breakout (J. A. 50, J. A. 91), but 
eventually they decided to become involved after receiving an 
assurance from their father that no shots would be fired.5 And 
indeed no shots were fired during the breakout. (J.A. 291)

numerous constitutional challenges to their convictions as well as their death 
sentences. Without waiving any of the other issues— some of which require 
development of the record through habeas corpus— they sought certiorari at 
this stage on the constitutionality of the death penalty for defendants who 
neither killed nor intended to kill.

zTheir only prior brush with the law was a misdemeanor charge of petty 
theft for taking a case of beer, fur which they were required to clean up 6 miles 
of highway. (J.A. 233-34)

aGaryb brother Joseph obtained the automobile and some guns used in the 
escape. (J.A. 50-52, J.A. 91) Dorothy Tison, Gary’s wife and the boys’ mother, 
was subsequently charged in connection with the escape, pleaded nolo eon- 
tendre to a charge of conspiracy to assist in the escape and served nine 
months in prison. State, v. Titan, Cr. No. 108352 (Maricopa County).

<The report continued that "both boys have made perfectly clear that they 
were functioning of their own volition [but) at a deeper psychological level it 
may have been less of their own volition than as a result of Mr. Tison’s 
‘conditioning’ and the rather amoral attitude within the family home”  See, 
infra, n.10.

"■’Raymond Tison slated prior to his sentencing, "Well, I just think you 
should know when we first came into this we had an agreement with my dad



4

Two days later, the car that was used for the escap e-*
, ^ n -ix o e r ien ced  a second flat tire, thus incapacitating it.
i 'nA 3 (T l A 311) A decision was made to try to flag down a 

(J. A 130, J. • h ape.6The car that was stopped— a

Mazda^onta^ned^he^Lyons family, consisting of a husband, a 
"  fe ,  toby and a niece named Theresa Tyson (no relatmn to

petitioners.), (/d.)
Both automobiles were driven down a dirt mad off the high­

way (J.A. 131) The family was then placed by the ,̂de of t 
road and the Tison^ possessions were placed in the Mazda. 
{,d v Z  Lincoln was then driven 50 to 75 yards further n o 
the desert (Id  ) T>» ensure that the family would not be able to 

Ltacoin and aiert the authorities, Gary further mca- 
pacited the Lincoln by firing into the car’s radiator (J. A. 39 
J.A. 131) Those were the first shots that were fired during the

entire episode.
The father, Gary Tison, then told his sons to go back to the 

Mazda and fetch a jug of water for the Lyons family. (J A. , 
i a  131) This combination of actions— further disabli g 
Lincoln and sending hia sons to fetch water for the Lyons 
family-was plainly intended to communicate to Ricky, Ray­
mond, and Donnie the reassurance that the Lyons family would 
not be killed. If there had been a plan to kill them, there would 
have been no need to waste ammunition in further mcapacitat- 
inr *1)0 car or to waste water on people who were going to be 
n i.-icd. The sentencing court itself found that, " I t  was not 
essential to the defendants’ continuing evasion of arrest that 
these persons were murdered.” (J.A. 283) Thus the very 
“senselessness" of the killings made them unpredictable to 

Ricky and Raymond. (J.A. 283)

While in the process of fetching the jug of water, the Tison 
brothers were shocked to hear the sounds and see the flashes of

that nobody wouhl get hurt because we [the brothers) MiaHte.l no one hurt^" 
(J.A. 359) There is nothin* in the reconl which in any way contradicts t

statement. . .
. . wanting to signal somebody down. Hag somebody down amltake 

their vehicle."(J.A. 35) “And then he IGary Tisnnl came up with a plan you 
know, just take another car . . ." (J.A. 52)

gunshots in the dark night as their father and Randy Green- 
awalt opened fire and shot the Lyons family. (J.A. 75, J.A. 131)7 
Either their father had changed his mind at the last minute 
without telling his sons, or he had deliberately misled them 
into believing that the Lyons would be left alive with water in 
the incapacitated Lincoln.8 1

1 As Justices Feldman and Gordon pointed out in their dissenting opinion, 
the only evidence in the record relating to the state of mind of the sons was the 
following statement by Raymond:

Well I just think you should know when we first came into this we had an 
agreement with my dad that nobody would get hurt because we I the 
brothers] wanted no one hurt. And when this |kjllmg of the kidnap 
victims) came about we were not expecting it. And it took us by surprise 
as much as it took the family [the victims) by surprise because we were 
not expecting this to happen. And I feel bad about it happening. I wish 
we could lhave done) something to stop it, but by the lime it happened it 
wns too late to stop it. And it’s just something we are going to live with 
the rest of our lives. It will always be there.

(J.A. 377; ellipses from opinion.)
There  is no ambiguity in the record about the fact that the father, Gary 

Tison, shot into the radiator of the Lincoln “to make sure it wasn't going to 
run " (J.A. 108) Nor is there any ambiguity about the fact that Gary Tison 
specifically told his sons to "get a jug of water for these people"— the Lyons 
family. (J.A. 75, J.A. 109) Neither is there any ambiguity about the Tact that 
all of the shooting was done by Gary Tison and Randy Greenawalt. (J.A.
112-13) The only ambiguity in the record is precisely how close the Tison sons 
were to the Lincoln when Gary Tison and Randy Greenawalt suddenly began 
to shoot into it. Raymond recalled being at the Mazda filling the water jug 
“when we started hearing the shots." (J.A. 21) Ricky believed that they were 
“headed toward the Lincoln to give it [the waterl to the Lyons family when 
the tragic events began: the father took the jug and he and Randy Greenawalt 
“went behind the Lincoln, spoke briefly, raised their shotguns and started 
firing." (J.A. 41, J.A. 112) It is impossible to determine whose recollection 
was more precise and no real effort was made to do so at the trial, since 
nothing turned on the physical proximity of the sons to the killers as they 
fired their shots. There is nothing in the record to contradict the statements 
of both sons that the shooting was sudden and unexpected and that they were 
not in a position to prevent it. Nor is there anything in those portions of the 
record cited by the Stale in its Rcs|>onse to Joint Petition for Writs of 
Certiorari ( “State’s Response") that contradicts the fundamental reality that 
Ricky and Raymond did not kill, plan the killings, or intend that the victims 
die. (Slate’s Response at I I . )

The State argued that petitioners and their father “began planning the 
escape a couple of years before it actually happened. (States Response at 1.) 
This assertion misleadingly summarizes Ricky Tisons statement. Ricky 
stated that he and his brother had had "thoughts" about his fathers getting 
out of prison for years, but had become involved in the actual escape plan only 
a week tiefore the escape. (Exhibit 1 to State’s Response at 8.) Furthermore,



6

It was for these murders— which were neither committed by 
Raymond or Ricky Tison nor specifically intended or planned

.  “rmmle of years" before the escape, Raymond and Ricky would have been at 
15 and 16 years old, respectively, and hardly in a position to plan a prison 

&  when Gary Tison killed a prison guard in 1M7. Raymond
and Rickv were eight and nine years old, respectively. (J.A. 223, J.A. 263). 
Their lack of comprehension of the significance of the event at the time was 
comDounded by their experience with their father during the ensuing eleven 

.ini-ini' which time he was a model prisoner and maintained a close 
E n ” wu!: hi, t o i l , .  See. i,„ra. „  I6 , „ l  TV. Mareh U . 1OT. .1 

132-33
Additionally the Stale claimed “While it has never been proved that either 

petitioner fired any of the fatal shots, the evidence suggests that Ricky 
Tisonk weapon was used to fire two rounds near the Lincoln (Exhibits 5 and 
6)" (State’s Response at 7.) That the State even mentions this point demon­
strates how weak its position is with res|>ect to petitioners’ culpability. 
Exhibits 5 and 6 to the Stateb Response only indicate (a) tw o. 45 caliber shells 
were found near the Lincoln, and (b) at one time Ricky Tison had bought a .45 
caliber gun. There is no evidence as to when the gun was fired (no bullets 
were ever found), what the gun was used for, or who fired it. There is no basis 
for the State to insinuate that Ricky Tison had any personul involvement in 
the killings and. indeed, the prosecution, the sentencing judge and the 
Arizona Supreme Court have all specifically held to the contrary. A t Ricky s 
trial, the prosecutor argued that “ He was an aider anti abettor. He conspired 
with the persons who did the murders." (J.A. 152) And at Raymonds trial, 
the prosecutor acknowledged that “ those other persons killed somebody 

(J.A. 191) The sentencing judge found as a mitigating circumstance 
that he was “convicted of four murders under the felony murder instruc­
tions ■ (J.A. 285) The Arizona Supreme Court has acknowledged on two 
separate occasions that there is no evidence that he participated in the 
killings. (J.A. 341, J.A. 364)The state’s apparent inference to the contrary at 
this stage of the case is simply not credible and should be given no further 
consideration by this Court.

The State also points to a statement by Ricky that he heard his father tell 
the Lyons that he (the father) was “thinking about” killing them. But the 
record is clear that it was after this that the father decided to send his sons to 
get the jug of water, thus telling Ricky in effect that he (the father) had 
decided not to kill them.

Finally, the Arizona Supreme Court cited a hypothetical statement made 
by Raymond in the presentence report to the effect that he would have killed 
in a very close situation. This is how the court characterized Raymonds 
statement:

. . .  he later said that during the escape he would have been willing 
personally to kill in a “ very close life or death situation, and that he 
recognized that after the escape there was a |iossibility of killings.

(J.A. 346) This is the actual statement from the presentence report:
When I asked the defendant if he ever thought when they were 

planning the break out at the prison, if someone might possddy get kdled 
in prison, lie  stated, that they had informed their father that was one

7

by them— that Raymond and Ricky Tison were sentenced to 
the penalty of death.

Several days after Gary Tison and Randy Greenawalt killed 
the Lyons family, the group was apprehended at a roadblock 
near Casa Grande, Arizona.9 The oldest brother, Donnie Tison, 
was shot in the head during the apprehension and died from his 
injuries. Ricky, Raymond and Randy Greenawalt were

condition that they would have to go by, that no one gel hurt. I then 
explained to him that entering a prison with loaded weapons was a pretty 
“gutty* thing to do. He stated, JWe had no intention to shoot anybody.” 
He then continued by stating, “Who ever said those guns were loaded.” I 
then pointedly asked him, ‘‘Were they, Raymond?" He said, “Well, yes 
tliey were, in case something happened." Tnis Officer asked, “ Raymond 
could you have shot somebody if the whole deal had gone sour?" He 
asked, “A t the Prison." And I said. “Yes.” He said, “ It would have hud to 
have been a very close life or death situation. I could not cold-bloodedly 
killed someone, no. Still 1 think I would have had some hesitation about 
killing anybody, I just never really thought of it." He continued by 
stating, “7b kill all those people at the prison would have been a senseless 
killing, that is something I did not want. I asked him, “Well when it 
started out why did you think you needed weapons?" He stated, “Just 
strictly psychological."

(J.A. 248) It is clear from the context that the dominant message was that he 
“had no intention to shoot anybody," that he would have had some “hesitation 
about killing anybody," and that he “just never really thought of it.” In any 
event, there is no suggestion anywhere in the record that either petitioner 
ever contemplated the cold blooded killing of an innocent family.

The dissenting Justices evaluated the record and arrived at the following 
conclusions:

'llie only evidence on the issue indicates that before the killings both of 
the Tison brothers had been sent back to the victims’ car by their father 
and were some distance away from the actual place at which the killings 
occurred. (Statements of Ricky Tison, 1/26/79 at 13 and 2/1/79 at 35; 
Statements of Raymond T7son, 1/26/79 at 18 and 2/1/79 at 42). There is 
neither a finding from the trial court nor evidence to establish that 
defendant was in a |>osition to prevent the killing, if he had wanted to. 
There is evidence that although defendant was “worried" about his 
fatherb intentions toward the kidnap victims, he did not know what was 
going to happen until, from the other car some distance away, he and his 
brother presumably heard the first shot, turned and saw the killings. 
(Statements of Ricky Tison, 1/26/79 at 9 and 13; Statement of Raymond, 
1/26/79 at 18).

(J.A. 356, J.A. 374). Nothing in the majority opinion specifically disputes any 
of these record facts.

,JOn August 10, 1978, Gary Tison, Randy Greenawalt, Donnie Tison, au<| 
petitioners were apprehended at a roadblock near Casa Grande, Arizona. 
Randy Greenawalt and petitioners were arrested and incarcerated. They 
were tried together and convicted in Pinal County for their part in the prison 
breakout. Slate v. (ireenawall, 128 Ariz. 388, 626 P.2d 118, cert, denial snb 
num, IHson v. Arizona, 454 II.S. 848 (1981).



8

» .i r,arv Tison, the father, initially escaped, but was 
found two weeks later dead of exposure in the desert. (J. A. 819,

J.A. 321)
The three surviving defendants were tried together for 

crimes committed .luring the breakout. They were convicte, 
ami sentenced to long prison terms.'”  Each was then tried 
separately for the four murders, convicted and sentenced to

death.
Prior to sentencing, the judge issued an order appointing Dr 

James A MacDonald, a clinical psychologist, to interview, test 
and evaluate the defendants." A fter a battery of tests and 
extended interviews with the boys and their mother, Dr. M c ­
Donald concluded that "these two youngsters . . . were 
obsessed with their father’s release,” that “ their father, Gary 
Tison exerted a strong, consistent, destructive but subtle 
pressure upon these youngsters,” and that “ these young men 
Z  committed to an act which waa eaaenttally W  them 
heads.’ Once committed,” he continued, “ it was too'late. .
(see, infra, n.16)12 Dr. MacDonald concluded that these 
youngsters have a capacity for rehabilitation and he recom­
mended a “structured and controlled setting. (See, infra, 

n. 16.)
The Chief Adult Probation Officer, after an extensive review 

of the entire record, concluded that “ this defendant did not 
actively participate in the murder of the Lyons family and 
Theresa Tyson, except to drive them to the scene. (J.A.
He was “tom between recommending the maximum or lighter 
sentence” and so he made no recommendation. (J.A. 252, J.A. 

269)

'"See, infra, n.l.
"Dr. MacDonald waa not appointed as a defenae expert but rather as a 

court expert.
,2l)r. MacDonald also concluded that there “does not appear to be any true 

defense based on brainwashing, mental deficiency, mental illness or irre 
sistable urge," but that "at a deeper psychological leve it may have been le.. 
of their own volition than as a result of Mr. Tison’s ‘conditioning and the 
rather amoral attitudes within the family home. See. m/m, n.lh.

9

Even though neither of the professional evaluators recom­
mended the death penalty, the trial judge imposed it on these 
two young men. He found three aggravating factors and three 
mitigating factors. The aggravating factors were: 1) that the 
"persons among the defendants who fired the fatal shots fired 
indiscriminately and excessively" and thus “knowingly created 
a grave risk to other persons in addition to” John Lyons and 
Donnelda Lyons,13 2) that the defendants committed the 
offenses for "pecuniary” reasons, namely to take the car; and 3) 
that the actual killers murdered their victims in “an especially 
heinous, cruel and depraved manner,” based on "the sense­
lessness of the murders,” since it “was not essential to the 
defendants’ continuing evasion of arrest that these persons 
were murdered.” (J.A. 281-83; emphasis added.)

Thus, only the second aggravating factor— pecuniary 
motive—  related to these petitioners, who did not themselves 
kill the victims.14 The first and third factors related specifically 
to the actual triggermen, who themselves chose the manner 
and extent of the shootings. Indeed, the sentencing judge used 
the same language in describing the aggravating factors found 
against the Tison brothers— who neither killed, planned to kill, 
nor specifically intended that the victims die— as he used in 
finding these same three aggravating factors against Randy 
Greenawalt, who deliberately murdered the victims. (J.A.
281-a i)15

,nThe sentencing court’s theory was apparently that Cary Tison and Randy 
Greenawalt intended to murder only John Lyons and Donnelda Lyons and 
that they created a risk to the other two people they also murdered.

"E ven  the “pecuniary” factor hardly seems to fit the actions and motives of 
the petitioners. Their crime was motivated by an obsession to break their 
father out of prison and be reunited with him, rather than by pecuniary 
considerations. Stealing a car was not part of the original plan, and resulted 
from the unanticipated flat tires during the escape. (J.A. 311)

ir.The Court found that the following aggravating circumstances applied to 
Randy Greenawalt:

“3. In the commission of the murders of John Lyons and Donnelda 
Lyons, the defendant knowingly created a grave risk of death to other 
persons in addition to those victims. The person or persons among the 
defendants who fired the fatal shots fired indiscriminately and exces­
sively as evidenced by the number of spent shotgun shell casings found in 
the immediate vicinity of the Lincoln and the number of fatal wounds 
sustained by John Lyons and Donnelda Lyons. The location of the fatal



10

The three mitigating factors found by the sentencing court 
were-1) the youth,of the petitioners; 2) the absence of any prior 
- 1  record- and 3) the fact that they were convicted of 
murder under a felony murder instruction which did not 

require a finding of intent. (J. A. 285)

hj -n,e defendant committed the offenses as.consideration for the 
• , ; .1 „  pxnectation of the receipt of something of pecuniary

X !  n l c l y  f c  UkinB »t  the .alomobSe and »lh er Pr » l * r t ,  o ( the
virfims John and Donnelda Lynns. . „

sgsspssi
conclusion is inescapable that ail me vicums Med by the

d fcV sm u l th7m\nnerinThichthe victimsi werekilled. w j

the equivalent to the severest physical torture.
"This finding is also based on the senselessness of the murders It was 

not essential lo the defendant’s continuing escape and evasion 
that these nenions be murdered. The victims could have easily been 
restrained sufficiently to permit the defendant £  
liefore the robberies, the kidnappings, and the lhc^ ^ |(\e'7 „e „ „  con- 
in snv event the killing of Christopher Lyons, who could nose no con 
ceivaJle threat to the ifefendant. by itself com|»els the conclusion that 
was committed in a depraved manner. _ ,

Tr. of March 2fi, 1979, at 11-11-44, Stale v. Greemmll. 128 An*, m .  621 . <
828, red. denied. 454 U.S. 882 (1981). rev’d tub nomGreenawaU v. «.cfceCs 
No. 84-2752 (9th Cir. March 20, 198(5); compare this language to J. A. 281-tw.

The Court found as additional aggravating factors that Greenawalt ha< 
been previously convicted of mtinler and armed ro > >ery. c . a

n

On direct appeal, the Arizona Supreme Court reversed the 
finding of the first aggravating factor relied on by the sentenc­
ing judge, concluding that the evidence did not support the 
hypothesis that the defendants who fired the shots deliberately 
created a grave risk to others. (J. A. 303) It affirmed the pecuni­
ary finding and the finding that the shootings were committed 
in an "especially heinous, cruel, or depraved manner." (J.A. 
301) It rejected petitioners’ argument that there were other 
mitigating factors in addition to the three found by the sentenc­
ing judge. (J.A. 305) Among the mitigating factors not found by 
the sentencing judge and raised on appeal, was petitioners’ 
claim that the “psychological reports on his mother and himself 
establishes the strong, manipulative influence [their] father, 
Gary Tison, had on [them].” (J.A. 339) The Arizona Supreme 
Court concluded that “the report does not support this argu­
ment” (J.A. 339), though a fair reading of the entire report—  
which is reproduced in footnote 16 below— demonstrably does 
support petitioners’ contention that (in the words of the report 
itself) “their father, Gary Tison, exerted a strong, consistent, 
destructive but subtle pressure upon these youngsters” and 
that “ these young men got committed to an act which was 
essentially ‘over their heads.’ ” Although such pressure might 
not constitute a "true defense,” it surely cannot be ignored— as 
it was by the lower courts— as a mitigating factor in a life or 
death decision.,fi

"The full text of Dr. MacDonald’s report to the sentencing court, which 
was part of the record on appeal, i3 as follows:

Dear Judge McBryde,
Enclosed please find three copies of the documents pertaining to the 

Tison boys as set forth in your order of January 10, 1979.
This included a lengthy social history taken by Mrs. Tison, review of 

school and hospital records, approximately 1 to 5 hours spent with each 
boy ami a foil and extensive psychological battery.

These young men represented a considerable diagnostic challenge and 
due to the nature of the case I proceeded slowly and attempted to work 
the entire psychological battery through a most cautious and careful 
manner.

H ie bottom line appears to be that these are two youngsters who were 
obsessed with their father's release but the obsession can not be consid­
ered an irresistahie impulse. There is no sign of psychosis or mental 
defect other than the mild antisocial personalities. Iliese most unfortu­
nate youngsters were born into an extremely pathological family and



12

On direct appeal prior to this Court's decision in Enmnnd v. 
Florida 458 U.S. 782 (1982), petitioners also argued that— in 
the court’s own words— "the imposition of the sentence of death 
upon an individual convicted under a felony murder theory 
without evidence that he was the actual perpetrator of the 
homicide or intended that the victim should die is grossly 
disproportionate and violates the prohibition against cruel and 
unusual punishment contained in the Eighth Amendment of 
the United States Constitution.” (J. A . 293-294) The court 
decided that issue adversely to both petitioners, concluding as I

were exposed to one of the premier sociopaths of recent Arizona history.
In mv opinion this very fact had a severe influence upon the personality 
structure of these youngsters, coupled with the cold, long suffering 
martyr-type personality of Mrs. tison. Under other circumstances 
these youngsters may have been referred to the in vemle court for bicycle 
heft.mischief, e tc , and would have never become invovcd in the 

horrendous criminal events which followed the escape in July of 1978.
The question of rehabilitation and their potential for rehabilitation 

looms large. 1 do not pretend to know legal processes and/or legal 
possibilities but I do believe, over time, that these youngs ers have a 
capacity for rehabilitation if placed in a structured and controlled set- 
tine Due to their youth, their naivity, their basic immaturity, poor 
judgment and lack or common sense these youngsters are easily led and 
easily manipulated. I f  at all possible it would be in their best interest to 
segregate them in any prison setting, if possible, from older, more 
hardcore prisoners. Ricky, in particular, is probably susceptible to sex­
ual assault as it appears from the vast amount of testing accomplished 
that Ricky is experiencing some significant psyehosexual dilliculties and 
in my opinion could lie “used" sexually by unscrupulous prisoners Due 
to the youth and the lack of sophistication on the part of boh  these boys I 
would urge that some consideration be given to the conditions ol their 
incarceration.

I do believe that their father, Gary Tison, exerted n strong consistent, 
destructive but subtle pressure upon these youngsters and 1 believe that 
these young men got committed to an act which was essentially over 
their heads." Once committed, it was too late and there does not appear 
to be any true defense based on brainwashing, mental deficiency, mental 
illness or irresistable urge. There was a family obsession, the boys were 
“trained” to think of their father as an innocent person being victim zed 
in the state prison but both youngsters have made perfectly clear that 
they were functioning of their own volition. At a deeper psychological 
level it may have been less of their own volition than as a result of Mr. 
Tison’s “conditioning” and the rather amoral attitudes within the family 
home.

Thank you Tor your attention to this note and I certainly appreciated 
the opportunity to work with these interesting ami extremely ehallcng- 
ing young men and I am grateful for the opportunity to be of service to 
the Superior Court.

Sincerely yours,
James A. MacDonald, Ph.D.

13

follows: “That they did not specifically intend that the Lyons 
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.” (J.A. 340-341)

The record in this case compels a conclusion even stronger 
than that petitioners did not specifically intend that the victims 
die; the uncontradicted record evidence establishes that Ray­
mond and Ricky Tison affirmatively intended and affirmatively 
believed that no one would be killed, and that they were taken 
by complete surprise when their father either changed his 
mind suddenly or tricked his sons into believing that the Lyons 
would be left alive with water in the incapacitated car.

Following this Court’s decision in Enviund  v. Florida, 
supra, the Arizona Supreme Court, on collateral review, reite­
rated its original conclusion that “ the evidence does not show 
that petitioner^] killed or attempted to kill.” (J.A. 345, J.A. 
364) Nor did it make any findings inconsistent with its original 
conclusion that petitioners “did not specifically intend that the 
[victimsl die. . . . ” (J.A. 340) However, the court then fash­
ioned a new and expanded legal definition of "intent” designed 
to fit the facts of this case: “[IIntended 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 fel­
ony." (J.A. 345, J.A. 363; emphasis added.) The court then 
held— by a 3 to 2 vote— that the evidence established beyond a 
reasonable doubt that petitioners “ intended to kill,” within its 
new definition, and that they could thus be executed under 
Enmnnd.

Justice Feldman and Vice Chief Justice Gordon, in a strongly 
worded dissent, argued “ Even if we ignore the previous con­
trary conclusion, today’s holding is remarkable because there is 
no direct evidence that either of the brothers intended to kill, 
actually participated in the killing or was aware that lethal 
force would be used against the kidnap victims." (J.A. 353, J.A. 
371) Even the State has admitted that “A t no time has [the



14

Arizona Supreme! Court held that either petitioner actually 
killed any of the four victims or that either petitioner planned 
any of the killings. . . . The original conclusion that petitioners 
harbored no specific intent to kill remains unchanged.” (State’s 
Response at 11.) Thus, Ricky and Raymond Tison stand sen­
tenced to die despite the agreement by all concerned that these 
young men, with no prior felony records, neither killed, 
attempted or planned to kill, nor specifically intended that 

death occur.17

SUMMARY OF ARGUMENT

The instant case is factually indistinguishable from Entnund 
v. Florida, 458 U.S. 782 (1982). In an effort to avoid the 
governing effect of that authority, the Arizona Supreme Court 
fashioned an expanded new definition of the "intent to kill” 
required for a non-killer defendant to be subject to the death 
penalty. Under this new definition, a non-killer who neither 
planned nor specifically intended that the victims die, is eligi­
ble for execution if he "intended, contemplated or anticipated 
that the lethal force would or might be used or that life would or 
might be taken. . . .” (J.A. 345; emphasis added.)

This definition— which attempts “ to apply the tort doctrine 
of foreseeability to capital punishment in order to satisfy the 
Enmund criteria” (J.A. 376)— is so broad, vague and open- 
minded that it would dramatically expand the category of those 
eligible for execution so as to include many (like petitioners) 
who are far less personally culpable than many who are not 
sentenced to die. Because judges and juries will continue to 
impose the death penalty only “rarely” on “ one vicariously 
guilty of the murder” ( Enmund v. Florida, 458 U.S. at 800), 
the disparity will increase between those sentenced to death 
and those not sentenced to death for crimes which are indis­
tinguishable in principle.

The Arizona Supreme Court’s decision thus violates the 
holdings of Enmund, Godfrey and other governing decisions.

,7For a listing of the other mitigating factors— not considered by the lower 
courts—see, infra, at 111-15.

15

If allowed to stand, it would permit the execution of two young 
men, with no prior felony records, whose personal culpability 
is indistinguishable in principle from that of Enmund and God­
frey. These young men, who were "trained” to believe their 
father was innocent, “got committed to an act which was essen­
tially 'over their heads,’ ” and agreed to help older family mem­
bers break their father out of prison only after their father—  
who “exerted a strong, constant, destructive but subtle pres­
sure upon these youngsters”— promised them that no one 
would be hurt. Moments before the shootings, they were affir­
matively led to believe, by the words and actions of their father, 
that the occupants of the disabled car would be left alive with a 
jug of water. They were surprised at the sudden decision of 
their father and his jailmate to shoot the victims, and they 
could do nothing to stop it.

No one in the recent history of this country has ever been 
executed where the personal aggravating factors have been so 
few and weak and the mitigating factors so many and strong. 
Petitioners’ sentences of death violate the Eighth Amendment 
and should be reversed.

ARGUMENT

I. THE EXECUTION OF RAYMOND AND RICKY TISON 
WOUIJ) VIOLATE THE EIGHTH AMENDMENT AND 
THIS COURT’S DECISION IN ENMUND V. FLORIDA.

In Enmund v. Flonda, this Court imposed a substantive 
constitutional limitation on the states’ power to impose the 
death penalty in cases where the defendant "neither took life, 
attempted to take life, nor intended to take life.” 458 U.S. 782, 
787 (1982). It held that the Eighth Amendment to the United 
States Constitution prohibits the imposition of the death 
penalty on an armed robber who did not himself either kill or 
personally intend that a killing take place. Neither the fact that 
armed robbery is a serious or dangerous crime, nor the fact 
that under Florida law Enmund was guilty of capital murder, 
allowed the stale, in imposing the death penalty, to ignore the 
difference in culpability between Enmund and those who actu­
ally and intentionally killed.



If)

This case is plainly controlled by Enmund. Here, as in 
Enmund, the defendants did not themselves kill. Here, as in 
Enmund, the prosecution’s case was tried under a the<>ry 0 
vicarious liability for felony murder. Here, as in Enmund. ihe 
state supreme court itself concluded that the petitioners did 
not specifically intend that the [victims] die . . . did not plot in 
advance that these homicides would take place, or . . . did inot 
actually pull the triggers on the guns which inflicted the fatal 
wounds. . . ” (J. A. 340-41) Here, as in Enmund, the judgment 
upholding the death penalty must be reversed.

A. Enmund v. Florida Requires Reversal.

Earl Enmund was convicted of the felony murder of an 
innocent family which was the victim of an armed robbery. The 
evidence in that case established that Enmund was stationed in 
a nearby car, waiting to help the killer escape. A fter the 
convictions were obtained, the trial court found four statutory 
aggravating circumstances regarding the petitioners involve­
ment,*8 and no mitigating circumstances, emphasizing that 
Enmund’s participation in the murder had been major in that 
he “planned the capital felony and actively participated in an 
attempt to avoid detection by disusing of the murder weap­
ons.” Enmund v. Slate, 399 So.2d at 1373 (1981), rev d 458 
U.S. 782 (1982). On appeal, the Florida Supreme Court held 
that the jury could have plainly inferred from the evidence that 
"Enmund was there, a few hundred feet away, waiting to help 
the robbers escape,” and that this was sufficient to find the 
petitioner to be constructively present and a principal in the 

murders under state law. Id.

It was in these circumstances that this Court held that the 
death penalty could not constitutionally be imposed. This 
Court’s opinion comprehensively surveyed "society s rejection 
of the death penalty for accomplice liability in felony murders, 
noting that most legislatures, judges, and juries have generally

'«On appeal, two of the aggravating circumstances were rejected by the 
Florida Supreme Court, while the finding of no mitigating circumstances was 
affirmed. Enmund v. State, 399 So.2d I3fi2. 1373 (1981), revd. 438 U.S. 782 
(1982).

17

rejected the imposition of the death penalty for individuals like 
Earl Enmund and Raymond and Ricky Tison. **' The Court 
then reached that same conclusion as a “categorical rule” of the
Eighth Amendment. Cabana v. Bullock,____ U .S ._____ , 106
S.Ct. 689, 697 (1986). ’Hie Court recognized the fundamental 
precept that “causing harm intentionally must be punished 
more severely than causing the same harm unintentionally,” 
and held that the state had violated the United States Constitu­
tion in treating alike both Enmund and those who killed and in 
attributing to Enmund the culpability of those who killed. 
Enmund v. Florida, 458 U.S. at 798. "For purposes of Impos­
ing the death penalty,” this Court concluded, "Enmund’s crimi­
nal culpability must be limited to his participation in the 
robbery, and his punishment must be tailored to his personal 
responsibility and moral guilt.” Id. at 801.

The imposition of the death penalty on Raymond and Ricky 
Tison would plainly violate that constitutional mandate. Ray­
mond and Ricky were admittedly convicted of participating in 
serious crimes which sometimes pose a risk to human life. But 
so was Earl Enmund: it is precisely because armed robbery 
presents a risk to human life that it is punished more severely 
than unarmed robbery, and included in those felony murder 
statutes which, like the A L I Model Penal Code, are limited to 
inherently dangerous felonies. See, A L I  Model Penal Code 
§210 and Commentaries. And, again like Earl Enmund, Ray­
mond and Ricky were convicted and punished based not on 
proof that they themselves intended death, but rather based on 
the superimposition of legal constructs one upon the other: 
“The interaction of the ‘felony-murder rule and the law of 
principals [or vicarious liability] combine to make a felon gener­
ally responsible for the lethal acts of his co-felon.’ " Enmund v. 
Florida, 458 U.S. at 787.

Tlie jury instructions in this case leave no doubt that the 
convictions required no finding of the intent to kill necessary 
for the imposition of the death penalty under Enmund, and the

'"See Enmund v. Florida. 158 U.S. at 789-96 (Court's description and 
analysis of the data).



18

record of these cases would have precluded any such finding. In 
both cases, the jury was charged that aiders and abettors, 
"though not present,” as well as conspirators, are responsible 
as principals for the commission of an offense (J. A. 177-79, J. A. 
216-19), and that “a murder committed in avoiding a lawful 
arrest or effecting an illegal escape from legal custody or in 
perpetration of or an attempt to perpetrate robbery or kidnap­
ping is murder of the first degree whether willful and premedi­
tated or accidental." (J.A. 180, J.A. 220). Thus the prosecutor 
was able to argue that if petitioners aided or abetted in the 
prison escape, they were guilty of the Lyons’ murders even 
though they neither pulled the trigger nor caused the killings 
in any way.20 In fact, the prosecutor argued at Kicky’s trial that 
“(t)here is tlo requirement that the defendant caused the k ill­
ings’’ (J.A. 173; emphasis added) and at Raymond’s trial that “ in 
this case we have a situation where the defendant is a conspir­
ator with other persons and those other persotis killed some­
body during these offenses, during a robbery, kidnap, avoiding 
or preventing lawful arrest, or escape” (J.A. 191; emphasis 
added). See J.A. 133-36, J.A. 185, J.A. 208-9. Once Ricky and 
Raymond Tison were convicted of first degree murder under 
the combined action of Arizona’s vicarious responsibility and 
felony murder rules, they became eligible for the death penalty 
despite their lack of personal involvement in the murders 
themselves. See Ariz. Rev. Stat. Ann. §§ 13-452, 13-453, Stat­
utory Appendix at la-2a.

Indeed, if anything, the facts of this case present stronger 
grounds for reversal of the death penalty than Enmund itself. 
In Enmund, reversal was mandatory because the record did 
not affirmatively establish Enmund’s intent to kill. Here by 
contrast, the record includes substantial evidence that the 
hoys affirmatively intended that no one he killed, and that they 
were either misled by their father, or that he suddenly changed 
his mind. In Enmund, the court not only found that the peti­
tioner actively participated in the planning and concealing of

^’Indeed. under this instruction and the reasoning of the courts below, 
petitioners’ mother could have received the death penalty for her role in the 
escape, a role for which she served nine months in jail. See, supra, n.,1.

19

the crime, but that he was a convicted prior felon with a 
pecuniary interest in the robbery. See Enmund v. Florida, 458 
U.S. at 785. Here, by contrast, we are faced with two teenage 
boys, with no felony records, with the natural ties and affection 
boys feel for their father.21 Indeed, the State itself conceded, in 
opposing review in this Court, that the Arizona Supreme Court 
has agreed “that petitioners harbored no specific intent to kill,” 
but continued to argue, erroneously, that the distinction was 
not constitutionally significant. (States Response at 11.)

In upholding these convictions on direct review, the Arizona 
Supreme Court reached precisely the conclusion that this 
Court reversed in Enmund: “that they did not specifically 
intend that the [victimsl 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. . . . ” (J.A. 340-41) But it found these facts to be “of 
little significance.” (J.A. 341) The absence of specific intent, 
that is, a showing of a “conscious purpose" to cause death, may 
well be “of little significance” in Arizona for purposes of defin­
ing the crime of felony-murder. Enmund does not limit the 
state of Arizona’s freedom to classify as murder, accessorial 
conduct which lacks specific intent to kill.22 But what is of little 2 * * * * * * * * * * * * * * * * * *

2,See, supra, n.16.
“ Federal cases are unanimous in requiring a community of unlawful pur­

pose at the time the deadly act leas committed. See generally. Corpus Juris
Secundum, Criminal I,aw §§87, 88, and Homicide §9(d), and cases cited
therein. Where a particular intent is an element of the felony it is essential
that one anting and abetting the commission of such offense should have been
aware of the existence of such intent in the mind of the actual perpetrator of
the felony. See, e.g., Sanders!Miller v. Logan, 710 F.2d (kl5 (10th Cir. 1983)
and cases cited therein; Acker v. Slate, 20 Ariz. 372, 220 P. 199 (192-1) ( “A
crime in which intent is an element cannot be aided innocently"). In Sondersl
Miller, the court held that to find one guilty of murder for aiding and abetting
one must prove the accused acted with “ full knowledge of the intent of the
persons who commit the offense." Significantly, and quite correctly, the court 
cites this Court's opinion in Enmund as support for this very proposition.
Enmn nd supports this proposition in that it mandates a finding of a conscious
purpose to cause death on the part of the non-triggerman. This is equivalent
to asserting that a non-triggerman must share the intent of the actual killer at
the moment of the killing.

The A L I Model Penal Code Commentary, in describing accomplice lia­
bility, is unequivocal on this point. The term “accomplice" only applies when



20

significance for liability is, under Enmund, constitutionally 
determinative of whether the most extreme penalty of death 
can be imposed. See, Cabana v. Bullock, 100 S.Ct. at 696; 
Lockett v. Ohio, 4.38 U.S. 586, 602 (1978) ("That States have 
authority to make aiders and abettors equally responsible, as a 
matter of law, with principals, or to enact felony-murder stat­
utes is beyond constitutional challenge. But the definition of 
crimes generally has not been thought automatically to dictate 
what should be the proper penalty.” )

In recognizing that Raymond and Ricky did not “specifically 
intend" to kill, the Arizona Supreme Court reached the only 
conclusion that is or could be supported by this record.23 That 
conclusion, under Enmund, mandates reversal of their death 

sentences.

B. The Arizona Supreme Court Violated Enmund In 
Defining Intent As Foresight Of A Possibility.

In an effort to avoid the clear application of Enmund, the 
Arizona Supreme Court, on review of petitioners’ habeas 
application, read the intent requirement of Enmund to mean * I

the participants are accomplices in the offense for which guilt is in question. 
As the Commentary notes:

(T)he inquiry is not the broad one as to whether the defendant is or is 
not, in general, an accomplice of another or a co-conspirator; rather, it is 
the much more pointed question of whether the requisites for accomplice 
liability are met for the particular crime sought to be charged to the 
defendant. (Commentary at 306)

Given such a limited inquiry, Section 2.06(e)(a) mnndates that the accused 
have the purpose of promoting or facilitating the commission of the particular 
crime for which they are being punished. See Commentary at 311. Enmund, 
in its explicit mandate that a “conscious purpose" to cause death be shown, 
harmonizes perfectly with these provisions of the A L I Mode! Penal Code.

zThe Arizona Supreme Court has held that the intent required by the 
Enmund standard must be found beyond a reasonable doubt, Slnte v. 
McDaniel, 130 Ariz. 188, 199; 065 P.2d. 70, 81 (1983), and it purported to find 
in this case that the “evidence docs demonstrate beyond a reasonable doubt
I that petitioners! intended to kill." (J.A. 345, J. A. 363) The application of this 
most stringent of factual standards to the record here makes it clear how 
permissive a legal standard the court was applying. There is simply no basis 
in this record for concluding beyond a reasonable doubt that Petitioners 
intended or contemplated that life would be taken as those concepts were 
used in Enmund.

21

no more than a broad tort based understanding of intentional 
action. Having already held that the boys did not specifically 
intend to kill, did not plan or plot the homicides, and did not 
themselves kill, a divided Arizona Supreme Court held that 
they might nonetheless be executed under Enmund. The 
“ intent to kill” required by Enmund, the Arizona Court 
decreed, means no more than that the defendant be in a situa­
tion in which he can be found to anticipate “that lethal force 
would or might be used or that life would or might be tAken in 
accomplishing the underlying felony.” (J.A. 345, J.A. 363) In so 
broadly construing intent to kill, the Arizona Supreme Court 
plainly violated this Court’s holding and reasoning in Enmund 
itself.24

Arizona’s interpretation totally eviscerates the Enmund 
standard. It constructs a test of "intent" which would allow the 
execution of virtually every individual ever convicted of any 
vicarious felony murder— including Earl Enmund himself. For 
the reality is that any felony involving a dangerous weapon 
presents some risk that lethal force might be used and that 
human life might then be taken. I f  that were not so, the 
underlying felony would not have been made a predicate for the 
felony-murder rule. And it was the purpose of Enmund pre­
cisely to distinguish— as a matter of constitutional law—  
between those actors in a felony-murder-accessorial-liability 
case who may be executed and those who may not.

In Enmund, this Court concluded:

Enmund did not kill or intend to kill and thus his 
culpability is plainly different from that of the robbers who 
killed; yet the State treated them alike and attributed to 
Enmund the culpability of those who killed the Kerseys. 
This was impermissible under the Eighth Amendment.

458 U.S. at 798. 21

21Cabana v. Bullock, 106 S.Ct. 089 (1980), makes clear that the Arizona 
Supreme Court is authorized to make the factual determination of intent 
required by Enmund. Rut it does not permit the state court to define the 
“ intent” required by Enmand according to state common law principles. The 
"intent" required by Enmund is an issue of federal constitutional law, man­
dated by the eighth amendment, and the error here came not in who made the 
findings of fact, hut in how they defined the constitutional standard.



24

The Constitution may not bar Arizona from choosing to 
classify as felony murder what most states would consider 
reckless homicide.?7 But it does prohibit the imposition of 
death for such risk-taking activity. As this Court recognized 
most recently in Cabana v. Bullock, “the principles of propor- * 21

reasoning. The Commentary condemns the use of mere probabilities as a sole 
mlicator of culpability. Tb do so, the Commentary notes, would amount to 
tunishing an accomplice for negligence while maintaining a higher standard 
ror the principal who actually perpetrated the crime. In the words of the 
•ommentators:

The culnability reiiuired to be shown of the principal actor, of course, Is 
normally higher than negligence. . . .  7b say that the accomplice is 
liable if the tffense committed is “reasonably foreseeable" or the ̂ proba­
ble. consequence" of another crime is to make him liable fo r negligence, 
even though more is remitted in order to convict the principal actor. This 
is both incongrous and unjust; if anything, the culpability level for the 
accomplice should he higher Ilian that of the principal actor. . . ."(Com ­
mentary, p. 312, n.42, emphasis added.)

>>* Nye & Nissan v. United States, 33(5 U.S. 613, 619 (19-19); see e g., Ala. 
■ode 55I3A-6-3, I3A-5-6 (1975 A Supp. 1981); Ark. Stat. Ann. 1141-1504, 
H 901 (1947 A Supp. 1985); Conn. Gen. Stat. Ann. 5553a 56a, 53a-35a (West 
958); Hawaii Rev.Stat. 55707-702, 706-660 (1976 A Supp. 1984), III. Ann 
Uat. Ch. 38 559-3 (1979), 1005-8-1 (1982 A Supp 1985); 1ml. Code Ann. 
•535-42-1-5, 35-50-2-6 (Hums 1978); Kan. Stat. Ann. 5521-3404. 21-4501 
1981 A Supp. 1985); Ky. Rev. Stat. 55507.040,532.060(1985); Mo. Ann. Stat. 
5565.024, 558-011 (Vernon 1979 A  Supp 1986); N.J. Stat. Ann. 552c; 11-4, 
V: 43 6 (West 1982); N.D. Cent. Code 55 12.1-16-02, 12.1-32 01 0985); Or. 
tev. Stat. 55163.125, 161.605 (1983); Pa. Stat. Ann. tit. 18, 552504, 1104 
l*urdon 1983); S.D. Codified Laws Ann. 22-16-20,22-6-1 (1979 A Supp. 1984)- 
bx. Penal Code Ann. 55 19.05, 12.34 (Vernon 1974); Wash. Rev. Code Ann 
59A.32.060. 9A.20.021 (1977 A Supp 1986); Wis. Stat. Ann. 55940 06 
39.50 (West 1982).

21A number of states have abolished the felony murder rule. Kentucky and 
lawaii abolished the nile hy statute. Hawaii Rev. Stat. 55707-701 (1976 A 
984 Supp); Ky. Rev. Stat. 5607.020 (1985). Ohio has effectively reclassified 
•lony murder as involuntary manslaughter. Ohio Rev. Code Annot. 
$2903 01, 2903.04 (1982 A 1985 Supp.) Michigan has eliminated the rule by 
ichcial decison. People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980). 
dditionally, New Hampshire has adopted a rebuttable presumption ofreck- 
ssness and Indifference under the nde, thereby constricting its reach N II 
;ev. Stat. Ann. 5630; l-R (1976 A 1983 Supp). See, Roth and Sun.lby, The 
dotty Murder Rule: A Doctrine at Constitutional Crossroads, 70 Cornell 

Rev. 446, 446-7 (1985). Ib is  Court in Enmund noted that only eight 
msdictmns imposed the death penalty, at that time, solely for participating 
i a robbery in which another roblier kills. 458 U.S. at 789. Of the eight 
insilictions so noted, four of them, after Enmund, no longer impose the 
, "  Penalty in those circumstances. See Miss. Ann. Code 599-19-101(7) 
'i'PP 1985), Nev. Rev. Stat. 200.033(4) (1983), and the California and South 
arolina cases cited in n.30, infra.

25

tionality embodied in the Eighth Amendment bar imposition of 
the death penalty upon a class of persons who may nonetheless 
be guilty of the crime of capital murder as defined by state law; 
that is, the class of murderers who did not themselves kill, 
attempt to kill, or intend to kill. 10G S.Ct. at G9G.

Tb define intent to kill so broadly as to encompass any risk­
taking activity which might endanger life, as the Arizona 
Supreme Court did, amounts to nothing less than violating-the 
constitutional limits imposed by Enmund. Yet it was only 
through such an evisceration of the Enmund test that a bare 
majority of the Arizona Supreme Court could deem the peti­
tioners to have “ intended” the deaths here and thus be eligible 
for the death penalty in this case. For if intent to kill were 
properly limited to its constitutionally mandated meaning, 
there simply would be no basis in this record for the execution 
of Raymond and Ricky Tison. The evidence is overwhelming 
that they lacked any such intent; indeed, it seems clear that 
their intent was that no one should die, and that their father 
either affirmatively misled them to believe that he shared that 
intent, or that he suddenly changed his mind after sending his 
sons for the water jug.

The record is clear that Ricky and Raymond Tison had every 
reason to believe that their father, a model prisoner since the 
boys were small children, would not turn ruthless killer.28 
First, during the breakout— a time most likely for violence to 
occur— the boys found their father holding to his word that 
killing would be avoided. No one was hurt and not a shot was 
fired. Guards and visitors were merely placed in a storage 
room, and Gary Tison, Randy Greenawalt, and Donnie, Ricky 
and Raymond Tison walked into the parking lot, got into a car, 
and drove off. Second, after the Mazda was flagged down and 
the victims abducted, Gary Tison shot the radiator of the 
Lincoln, disabling it in the middle of the desert. The victims 
were placed in the Lincoln, as if to be left to their own devices.
I f  the victims were to be shot, the operability of the Lincoln 
would be irrelevant. Third, and directly buttressing this

*""|T|herc was a family obsession, the boys were 'trained’ to think of their 
father as an innocent person. . . ." See, supra, n. 16.



26

inference, Gary Tison sent Ricky and Raymond “to go get some 
water, get a jug of water for these people.” In light of these 
facts, the execution of Ricky and Raymond can only be viewed 
is the very sort of attribution of the father’s guilt to the sons 
that Enmund squarely prohibits.

Arizona^ requirement as to the type and level of intent 
necessary to satisfy Enmund is also at variance with the 
majority of courts which have applied Enmund. Petitioners 
are aware of no federal case allowing a death sentence to stand 
solely on the basis that a defendant anticipated that lethal force 
might be used or that lives might be taken.29 Similarly, sub­
stantial authority exists in post-Enmund cases decided by 
state courts that more than a possibility that lethal force might 
be employed is necessary to justify execution.30

v>See Hyman v. Aiken, 777 F.2d 938, 940 (4th Cir. 1985) (death sentence 
vacated because "It|he instruction allowed the jury to recommend a death 
sentence for Hyman as an aider and abettor whether or not he killed, 
attempted to kill, or intended to kill the robbery victim"); Chaney v. Brown, 
730 F.2d 1334, 1356 n.29 (10th Cir.), cert, denied, 105 S.Ct. 601 (1984) 
(“Before death penalty can be imposed it must be proven beyond a reasonable 
■louht that |the defendant) killed or attempted to kill the victim, or himself 
intended or contemplated that the victim’s life would be taken"); Fleming v. 
Kemp, 718 F.2d 1435, 1452-56 (11th Cir. 1984) (jury had to have found 
defendant guilty of malice murder to support dentil sentence under 
Enmund), reh. denied, 765 F.2d 1123(11th Cir. 1985), cert, denied, 106 S.Ct. 
1286 (1986); Reddix v. Thigpen. 728 F.2d 705, 708 (5th Cir.), reh. denied, 732 
F.2,1 494 (5th Cir.), cert, denied, 105 S.Ct. 397 (1984) ( “The eighth amend­
ment, then, allows the state to impose the death penalty only if it first proves 
that the defendant either participated directly in the killing or personally had 
in intent to commit murder”).

'‘'People v. Garetval, 173 Cal. App. 3d 285, 218 Cal. Rptr. 690, 696 (1985) 
(death penalty may be imposed “only if the aider and abettor shared the 
peqietrator's intent to kill"); State v. Peterson, 335 S.E.2d 800, 802 (S.C. 
(985) (“death penalty can not be imposed on an individual who aids and abets 
in a crime in the course of which a murder is committed by others, but who did 
not himself kill, attempt to kill, or intend that killing take place or that lethal 
force be used"); People v. Garcia. 36 Cal.3d 539,557, 205 Cal. Rptr. 265, 275, 
684 P.2d 826, 836 (1984), cerf. denied, 105 S.Ct. 1229 (1985) ("possible 
inference of intent to aid a killing" not enough to satisfy Enmund and the 
eighth amendment); Carlos v. The Superior Court of Los Angeles County, 35 
Cal 3d 131, 151, 197 Cal. Rptr. 79, 92, 672 P.2d 862, 875 (1983) (defendant’s 
“knowledge that his codefendants were armed and prepared to kill," his 
contemplation “that |codcfendant) would shoot and someone might l»e killed” 
are similar to facts in Enmund; court ruled that death penally imposed on 
this record is unconstitutional); Hatch v. Slate, 662 P.2d 1377, 1383 (Okla.

27

The Arizona Supreme Court’s decision to affirm Ricky 
Tison s and Raymond Tison’s death sentences is even beyond 
the outer fringe of its own body of decisions concerning the 
applicability of the death statute. Petitioners’ cases are the only 
post-Enmund cases adjudicated in Arizona which affirm the 
imposition of the death penalty solely on the basis that defend­
ants allegedly anticipated or contemplated that lethal force 
might be used or lives might be taken. In fact, in other cases, 
the Arizona Supreme Court has overturned convictions or 
commuted death sentences where it could not find an intent to 
kill-31 Only in cases where that court has specifically found that 
the defendant killed the victim or possessed an intent to kill the 
victim, has Arizona upheld the imposition of the death penalty 
in other felony murder convictions.32

Grim. App. 1983) (sentencer must examine defendants individual particip- 
tlon and intent before imposing death penalty), reh. 701 P.2d 1039 (Okla

r \M ax ff denied’ 100 S Ct- 934 0986); People v. Dillon, 34
Gal .ld 441, 194 Cal. Rptr. 390, 420, 668 P.2d 697, 727 (1983) (felony murder 
conviction reduced to second degree murder because defendants individual

r!1? .  11 not rise to level of intent to kill); People v. Jones, 94 III 2d 275 
447 N E 2d 161 (1982), cert, denied, 404 U.S. 920 (19&3) (where defendant’s 
participation m only in the underlying felony and where defendant does not 
intend that the victim be killed and does not actually participate in killing 
death penalty may not be imposed); People v. Tiller, 94 III.2d 303 447 N E 2d 

) ohm )982)’ ^  de" iC,i' 461 U S 944 (l983) (»»m e language as People v.

"See State v. Emery, 141 Ariz. 5-19, 688 P.2,1 175(198-1) (court could not 
determine whether Emery or accomplice caused victim’s death and reduced 
Emery s death sentence to life imprisonment beenuse the court could not find 
that Emery killed the victim, attempted to kill the victim or intended that his 
accomplice kill the victim); State v. McDaniel, I3f> Ariz. 188, W55 P2d 70 
(1983) (court found no intent to kill and commuted McDaniels sentence to life 
where McDaniel assisted in the assault and robbery of the victim, helped tie 
up victim and left victim in car trunk where he died of heat exhaustion- 
however, because the car was left in the victim’s apartment complex with the 
keys in the ignition and the windows o|ien, court surmised that McDaniel 
wanted someone to rescue victim and, therefore, did not contemplate the 
death of the victim).

™SeeState v Bishop, 144 Ariz. 521, 698 P.2d 1240 (1985) (Bishop round to 
have killed victim where evidence demonstrated that Rishop planned to kill 
the victim, struck the victim four times with a hammer, stole victim’s wallet, 
tied up victim and threw him in mine shaft and covered up the victim)- State v. 
Bracey, 145 Ariz. 521), 703 P.2d 464 (1985), cert, denied, 106 S.Ct. 898 (1986) 
(court found that Bracey, a contract killer, actually killed two victims and a 
third intended victim lived and identified Bracey as murderer); State v



28

Moreover, the application of the death penalty in this case 
would serve no useful purpose. This Court noted in Furman v. 
Georgia, 408 U.S, 238(1972) that no purpose is served "where 
the [death | penalty is so seldom invoked that it ceases to be the 
credible threat essential to influence the conduct of others." 408 
U S. at 312. That the Tisons' case presents a rare instance of a 
death penalty being imposed on individuals without intent to 
kill is clear. As Justice White noted, in some cases “ it may be

Hoover 145 Ariz. 538. 703 P.2d 482(1985), cert, denied. 106 S.Ct. 834 (1986) 
(same Tacts as Rmcey, court found that Hooper either killed the victims or 
attempted to kill the victims beTore Bracey achieved that result); State v. 
Martinez Villareal, 145 Ariz. 441, 702 P.2d 670, cert, denied. 106 S.Ct. 339 
(1985) (trial court made finding that the defendant actively and deliberately 
took part in murder and intended both victims to die based on Martinez- 
Villareal's braceing to friends that he had killed two people); State v. Poland, 
144 Ariz. 388, 698 P.2d 183, cert, granted, 106 S.Ct. 60 (1985) (Arizona 
Supreme Court found that the defendant killed, attempted or intended to kill 
victims where evidence demonstrated that Poland robbed an armored car and 
disposed of the guards’ bodies in Lake Mead); Slate v. Fisher, 141 Ariz. 227, 
686 P.2d 750, cert, denied. 105 S.Ct. 548 (1984) (Enmund satisfied where 
special verdict found that Fisher actually committed the murder); State v. 
Harding. 141 Ariz. 492,687 P.2d 1247 (1984) (trial court made specific finding 
that Harding killed victim); Slatev. James, 141 Ariz. 141,G85P.2d 1293,cert. 
denied, 105 S.Ct. 398 (1984) (companion case to State v. Libbertnn, infra; 
James found to have actually caused the victim’s death); State v. Libberton, 
141 Ariz. 132, 685 P.2d 1284 (1984) (court found that Libberton held gun on 
victim, threatened victim, struck victim with rock and hoard, fired gun at 
victim’s head, slammed rocks on victim’s head and then threw body into mine 
shaft, thereby satisfying Enmund intent to kill requirement); State v. Villa- 
fnente, 142 Ariz. 323, 690 P.2d 42 (1984), cert, denied, 105 S.Ct. 1234 (1985) 
(court concluded that the defendant killed and intended to kill his victim 
where he struck the victim several times in a fight ami left her bound and 
gagged and she subsequently died as a result of gagging); Slate v. Gillies, 135 
Ariz. 500, 662 P.2d 1007 (1983), cert, denied 105 S.Ct. 1775 (1984) (Gillies 
confessed to friends that he kidnapped, raped, robbed and handed rock to 
accomplice who used it to kill victim and then helped bury victim thus 
satisfying Enmund intent testY,State v. Jordan, 137 Ariz. 504, 672 P.2d 169 
(1983) (Enmund satisfied because Arizona Supreme Court found that Jordan 
killed and intended to kill victim); State v. Smith, 138 Ariz. 79, 673 P.2d 17 
(1983), cert, denied. 465 U.S. 1074 (1984) (court concluded that Smith 
planned the killing and strangled the victim while another participant stab­
bed her; court found that Smith intended to kill and participated in the 
killing); State v. Richmond, 136 Ariz. 312,606 P.2d 57, cert, denied. 464 U.S. 
986 (1983) (court found that Richmond Intended to kill where he admitted 
planning the robbery, driving the victim into the desert and knocking victim 
unconscious and where court found that Richmond repeatedly drove a car 
over victim).

29

conceivable that a few of the 'triggermen' actually executed 
lacked an intent to kill. But such cases will of necessity be 
rare." Enmund v. Florida, 458 U.S. at 791-92.

One can only surmise bow infrequent death will be imposed 
on a “non-triggerman” who not only lacks specific intent, but 
who was affirmatively fooled by the actual killers. This Court 
further noted in Enmund that deterrence could only be a 
credible goal when murder is deliberate: “ We are quite uncon­
vinced, however, that the threat that the death penalty will be 
imposed for murder will measurably deter one who does not 
kill and has no intention or purpose that life will be taken. 
Instead, it seems likely that 'capital punishment can serve as a 
deterrent only when murder is the result of premeditation and 
deliberation,’ Fisher v. U.S., 328 U.S. 463, 484 (1946) (Frank­
furter, J., dissenting), for if a person does not intend that life be 
taken or contemplate that lethal force will be employed by 
others, the possibility that the death penalty will be imposed 
for vicarious felony murder will not ‘enter into cold calculus 
that precedes the decision to act.’ Gregg, v. Georgia, supra, at 
186.” Enmund v. Florida, 458 U.S. at 798-99.

Finally, as in Enmund, one would be hard-pressed to find 
society’s need for retribution sufficient to jusify the imposition 
of the death penalty here. Having been affirmatively misled by 
their father into believing that no lethal force would be used, 
the boys could not possess the requisite moral culpability to 
warrant the most extreme sanction, for intention in criminal 
law is the critical factor in assessing "the degree of criminal 
culpability.” Mullaney v. Wilbur, 421 U.S. 684, 698 (1975); C f, 
Robinson v. California, 370 U.S. 660 (1962) and Weems v. 
U.S., 217 U.S. 349 (1909) (Criminal penalties as unconstitu­
tionally excessive in the absence of intentional wrongdoing).

Nor is this the kind of case which— according to the majority 
in Enmund— “would be very different,” because “the like­
lihood of a killing in the course of a robbery was so substantial 
that one should share the blame for the killing if he somehow 
participated in the felony.” 458 U.S. at 799. The Enmund 
majority, in very next sentence, distinguished the kind of 
crimes “ for which killing is not an essential ingredient. . . ."



30

Id. In this case both the sentencing court and the Arizona 
Supreme Court hiade explicit findings that the murders were 
“not essential to the defendants' continuing evasion of arrest, 

(J. A. 283), and that the sudden decision of Gary Tison and 
Randy Greenawalt to murder the victims was "senseless" (J. A. 
337). These findings— that the murders committed by Gary 
Tison and Randy Greenawalt were “not essential” to the joint 
escape and were senseless— coupled with petitioners’ uncon­
tradicted statements that they had an agreement that no one 
would get hurt, clearly take this case out of that exceptional 
category where the likelihood of a killing in the course of a 
felony would be so substantial as to warrant the death penalty 
for non-killers who did not plan or intend the deaths of the 
victims.

That the death penalty is excessive here under the eighth 
amendment is further buttressed by this Court’s ratonale in 
Coker v. Georgia, 433 U.S. 584 (1977). Defendant, sentenced to 
death for raping an adult woman, obtained relief from this 
Court notwithstanding a heinous criminal record, consisting of 
murder, rape, kidnapping and aggravated assault. A fter find­
ing a general aversion among most jurisdictions to applying the 
death penalty to rape cases, the Court stated that these factors 
“confirm[edl our own judgment, which is that death is indeed a 
disproportionate penalty for the crime of raping an adult 
woman.” Coker v. Georgia, 433 U.S. at 597. Significantly, this 
Court’s “own judgment” was informed by the comparison 
between rape and deliberate murder: “ It is difficult to accept 
the notion, and we do not, that the rapist, with or without 
aggravating circumstances, should be punished more heavily 
than the deliberate k ille r . . . ” Id. at 600 (emphasis added). The 
comparison between rape and deliberate murder is entirely 
consistent with the reasoning of Justice White’s concurrence in 
Lockett and this Court’s opinion in Enmund. That this Court 
was unwilling to compare aggravated rape to unintended 
vicarious felony murder reflects the excessiveness of the death 
penalty to the latter offense.

Under Cabana v. Bullock, 106 S.Ct. 689 (1986), no further 
proceedings are necessary to vacate the death penalties

31

imposed on Raymond and Ricky Tison. Cf. Id. at 700-01 (Bur­
ger, C.J., concurring). The application of the Enmund stan­
dard in this case is clearer even than in Enmund itself: the only 
conclusion, the conclusion reached by the state court in its 
initial review (and acknowledged by the State in its Response 
to Petition for Writs of Certiorari), is that these boys lacked the 
intent to kill that this Court has held is mandated by the Eighth 
Amendment. In these circumstances, the Constitution pro­
hibits their execution.

II. T IIE  EXECUTION OF RAYMOND AND RICKY 
TISON WOULD VIOLATE THE EIGHTH AMEND­
MENT AND THIS COURT’S DECISION IN GODFREY 
v. GEORGIA

A. A Comparison Between The Circumstances In Godfrey 
And In The Instant Case Demonstrates That There Is 
“ No Principled Way lb  Distinguish This Case, In 
Which The Death Penalty Was Imposed, From The 
Many Cases In Which It Was Nol,” And Thus Estab­
lishes That The Arizona Court Did Not Apply A Consti­
tutional Construction lb  Its Death Penally Statute.

In Godfrey v. Georgia, this Court considered the issue of 
whether, in affirming the imposition of the sentence of death in 
that case, the Georgia Supreme Court adopted such a broad 
and vague construction of the relevant aggravating circum­
stances so as to violate the eighth and fourteenth amendments 
to the United States Constitution.3-1 446 U.S. 420, 423 (1980). 
In a 6 to 3 decision, this Court reversed the death penalty in 
that case. The plurality decision— written by Justice Stewart 
and joined by Justices Blackmun, Powell and Stevens31— con-

■"In the words of this Court:
In the case l>efore us, the Georgia Supreme Court has affirmed a sen­
tence of death based upon no more than a finding that the offense was 
"outrageously or wantonly vile, horrible and inhuman." There is nothing 
In these few words, standing alone, that implies any inherent restraint 
on the arbitrary and capricious infliction of the denth sentence. A person 
of ordinary sensibility could fairly characterize almost every murder as 
"outrageously or wantonly vile, horrible and inhuman."

446 U.S. at 428-29.
^Justices Rrcnnan and Marshall joined the judgment reversing the death 

penalty in a separate opinion written by Justice Marshall. Id. at 4UH.



32

hided that Godfrey’s “crimes cannot be said to have reflected a 
onsciousness materially more 'depraved' than that of any per- 
on guilty of murder." Id. at 433. There was thus “no principled 
vay to distinguish this case, in which the death penalty was 
mposed, from the many cases in which it was not," Id. Since a 
apital sentencing scheme must provide a "meaningful basis for 
listinguishing the few cases in which {the penalty] is imposed 
rom the many in which it is not,” the Georgia Court’s decision 
o uphold the imposition of the death penalty for Godfrey^ 
rimes was unconstitutional.35 Id. at 427, (quoting Gregg v. 
Georgia, 428 U.S. 153 (197G) and Furman v. Georgia, 408 U.S. 
:38, reh. denied, 409 U.S. 902 (1972)). This Court thus 
inswered "no” to the question posed for decision: “Whether, in 
ight of the facts and circumstances of the murders [Godfrey] 
vas convicted of committing, the Georgia Supreme Court can 
>e said to have applied a constitutional construction” to its 
leath penalty statute.

A comparison between the circumstances of the instant case 
md those of Godfrey demonstrate that the imposition of the 
leath penalty on the Tison brothers is even more inconsistent 
vith constitutional standards than it was in the Godfrey case, 
ind thus establishes that the Arizona court cannot be said to 
lave applied a constitutional construction to its death penalty 
tatute.

In Godfrey, the defendant himself, after “thinking about it 
or eight years," decided to murder his wife. Id. at 426. Pre- 
dously, he had been charged by her with aggravated assault 
‘based on an incident in which he had cut some clothes off her 
>ody with a knife.” Id. at 444. On the day of the killings, 
Jodfrey "got out his shotgun and walked with it down the hill 
rom his home to the trailer where his mother-in-law lived.” Id. 
<t 425. There is no doubt that during this walk he was pre- 
neditating the murders he was about to commit. When he 
irrived at the trailer, he looked through the window and

™ln Godfrey, this Court held specifically that the Georgia Supreme Court 
annot be said “to have applied a constitutional construction of the phrase 
mlrageously or wantonly vile, horrible or inhuman in that (they 1 involved 

depravity of mind. . . ." Id. at 4:tt.

33

“observed his wife, his mother-in-law and his eleven year old 
daughter playing a card game. ” Id. With full realization that his 
eleven year old (laughter would observe the ensuing horror, he 
pointed the shotgun at his wife’s head and fired, “ in coldblooded 
executioner’s style.” Id. at 449 (White, J., dissenting). His 
eleven year old daughter, watching in terror, began to run past 
Godfrey, seeking help for her mortally wounded mother. God­
frey struck her on the head with the barrel of the gun. Though 
such a blow might easily have been lethal, in this case it merely 
injured the girl. Godfrey then took the time to reload his 
shotgun, enter the trailer, aim at his terrified mother-in-law, 
and shoot her as well. As the dissenting opinion in Godfrey 
observed: the mother-in-law’s "last several minutes as a sen­
tient being must have been as terrifying as the human mind can 
imagine.” Id. 449 (White, J., dissenting).3*5

At the time of these multiple premeditated murders and 
aggravated assault, Godfrey was a mature adult. He acknowl­
edged that his crime was “hideous,” that he had been thinking 
about it for eight years, and that “ I ’d do it again.” Id. at 427. 
There is no question that he specifically intended to kill his two 
victims, that he premeditated their murder, and that their 
death was purposeful.

In the Tisons' case, on the other hand, the petitioners— who 
were 18 and 19 years old at the time they agreed to help their 
father escape from prison— did not themselves kill anybody. 
They "had an agreement with [their] dad that nobody would 
get hurt because we wanted no one hurt.” (J. A. 287) During the 
breakout itself, while they were in control of the guns, not a

•■"The dissent went as follows:
And who among us can honestly say that Mrs. Wilkerson did not feel 
“torture" in her last sentient moments. Her daughter, an instant ago a 
living being sitting across the table from Mrs. Wilkerson, lay prone on 
the floor, a bloodied and mutilated coqwe. The seconds ticked by; enough 
time for her son-in-law to reload his gun, to enter the home, and to take a 
gratuitous swipe at his daughter. What terror must have run through her 
veins as she first witnessed ner daughters hideous demise and then came 
to terms with the imminence of her own. Was this not torture? And if this 
was not torture, can it honestly be said that petitioner did not exhibit a 
“depravity of mind" in carrying out this cruel drama to its mischievous 
and murderous conclusion?

Id. at 450-51 (While, J., dissenting).



34

ingle shot was fired. Before their father and Greenawalt sud- 
enlv decided to kill the victims, Gary Tison first disabled the 
ar and then sent hjs sons to get water for the victims, thus 
ffirmatively leading them to continue to believe that the vic- 
ims would be left alive with a jug of water. The father then 
ither suddenly changed his mind and killed the victims, or his 
,rior actions were intended to trick his sons into believing that 
he victims would be left alive.37

In sum, the Tison brothers were young men with no prior 
elony records, heavily under the inlluence of their parents,38

"Both the sentencing judge an,I the Arizona Supreme Court madei fin i­
ngs which support the petitioners contention that they had ahao ute y no 
easnn to believe that their father and Randy Greenawalt would kill the 
ictims since killing them "was not essential to the defendants’ continuing 
vasion of arrest.” (J.A. 283) The sentencing court found:

It was not essential to the defendant continuing evasion of arrest that 
these persons were murdered. The victims could easily have been 
restrained sufficiently to permit the defendants to travel a long distance 
l>efnre the robberies, the kidnappings and the theft were reported. And 
in anv event the killing of Christopher Lyons, who could nose no con­
ceivable threat to the defendants, by itself compels the conclusion that it 
was committed in a depraved manner.

(J.A. 283)
The Arizona Supreme Court found:

The senselessness of the murders given the inability ofThe victims to 
thwart the escape, especially in such an Isolated area, ami Ithe ITact that i« 
young child, less than two years old, who posed no threat to the captors, 
was indiscriminately shot while in the arms of his mother, compels the 
conclusion that the actual slayers possessed a shockingly evil state of 
mind Less violent alternatives which would have served their purposes 
in preventing their detection by the authorities were obviously available. 
But they chose to slaughter an entire family and Theresa lyson.

(J.A. 337, emphasis added.) .
Mad the killing of the victims been essential to the escape, there would, 
perhaps, be n stronger basis for concluding that the sons should have realI7.e,l 
that they were going to be killed. See Enmund v. Florida, 158 U S. at 7. 8. 
But the very “senselessness" of the murders made them far less predictable, 
especially to the children of a man they believed had been rehabilitated. The 
irconl shows that the sons did not know, at the time, that Randy Grecna 
wait—whose idea it apparently was to kill the victims— was a convicted 
murderer. (J.A. 219, J.A. 213)
vSec. supra, n. 16. According to Dr. MacDonald’s psychological evaluation of 
Ricky Tison, "there had been continuing and subtle pressure upon this 
youngster, applied by his father in a most manipulative but subtle and 
consistent manner, quite possibly beyond Ricky's awareness. . . . He indi­
cated that at this time his father, Gary Tison, was the leader of the group and 
that he was a very dominant personality.* Additionally, Dan Deck, a jour-

35

who— perhaps naively, as it turned out— believed that they 
could help their father, a model prisoner whose last crime had 
been committed l l  years earlier, escape from prison without 
anybody getting hurt. They never fired a shot, never specifi­
cally intended to kill anyone, and affirmatively believed that 
the victims would be left alive in an incapacitated car with a jug 
of water. It was not their purpose to kill, and they did not, in 
fact, kill. As the psychologist, appointed by the court to evalu­
ate them for sentencing, so aptly put it:

I do believe that their father, Gary Tison, exerted a strong, 
consistent, destructive but subtle pressure upon these 
youngsters and I believe that these young men got com­
mitted to an act which was essentially “over their heads.” 
Once committed, it was too late . . .

MacDonald Evaluation, supra, at n.16.

It is not surprising, therefore, that the pre-sentence reports 
for both Tison brothers refused to recommend the death 
penalty. The Chief Adult Probation Officer concluded that the 
defendant "did not actively participate in the murder of the 
Lyons Family and Theresa Tyson, except he drove them to the 
scene.” (J.A. 252) A fte r  a complete review, the Probation 
Officer was "tom  between recommending the maximum or 
lighter sentence.” Thus, in both cases “no recommendation” 
was made. (J.A. 252, 2C9)39 The court-appointed psychologist 
concluded that “these youngsters have a capacity for rehabilita­
tion" and recommended that they be “placed in a structured 
and controlled setting,” MacDonald Evaluation, supra, at n. lG.

nalist who taught classes at the Arizona Stale Prison and who came to know 
Gary Tison well through the prison newspaper, testified at the sentencing 
hearing that ”|Gary Tison | was one of the most persuasive people I have ever 
met." Tr. March 11, l!)79at I30.
is I n contrast, the prcscntence report for Randy Greenawalt did recommend 
the death penalty. Despite the significant differences between the pres- 
cnlence reports for the Tison brothers and the presentence report for Green­
awalt, the sentencing judges findings relating to aggravating circumstances 
were essentially the same insofar as they related to the killings themselves. 
Indeed he used the same language. Because his sentence predated Eninund, 
he drew no distinction between the actual killers and those who neither killed 
nor specifically intended the deaths. Greenawalt’s conviction has recently 
been reversed and remanded by the 9th Circuit in Greenawalt v. Ricketts. 
No. 81-2752 (March 20, 1985).



3f>

Rv any relevant basis of comparison, the Tison brothers are 
far less deserving of the death penalty than was Godfrey. Their 
rimes lie much further from “the core” and nearer “the periph- 

nrv« of those murder cases for which the most serious of penal­
ties is imposed. Godfrey v. Georgia, 440 U.S. at 429-30.

Even if one looks at the killings themselves, without regard 
to the role of the petitioners— a view now forbidden by 
Emnund— there is “no principled way to distinguish this case 
I the Tison brothers], in which the death penalty was imposed, 
from the many cases"— including Godfrey—  in which it was not.

In the Tison case, a family of four was shot simultaneously 
(though one apparently remained alive for some time). In God­
frey, first the mother was shot; after that, the daughter— who 
witnessed her mother's shooting— was assaulted; and then the 
mother-in-law— who had witnessed both the killing of her 
daughter and the assault on her granddaughter— was shot. In 
both cases, shotguns were used. In both cases the killings were 
senseless and horrible.

The crucial constitutional distinction between the Tison and 
Godfrey cases lies in the individual "consciousness” or state of 
mind of the defendants. A  plurality of this Court concluded that 
Godfrey’s "crimes cannot be said to have reflected a con­
sciousness materially more ‘depraved’ than that of any person 
guilty of murder.” Id. at 433. The record in Tison plainly estab­
lishes that their actions, intentions and beliefs reflect “a con­
sciousness" materially less depraved and culpable than that of 
most other persons guilty of murder, including Godfrey.

The Tison brothers neither committed the actus reas of 
murder, nor did they possess the mem rea for murder. They 
neither killed, nor did they specifically intend to kill, nor did 
they plan any killing. Even the State of Arizona formally con­
cedes this in its papers before this Court.10

<""At no time has |the Arizona Supreme Courtl held that either petitioner 
actually killed any of the four victims or that cither petitioner planned any of 
the killings. . . . The original conclusion that petitioners harbored no specific 
intent to kill remains unchanged." State’s Itcs|>onsc at II.

In order to convict the Tisons of the crime of murder, the 
State of Arizona was required to superimpose one legal con­
struct upon another. The murderous acts of Gary Tison and 
Randy Greenawalt were deemed attributable to petitioners by 
means of accessorial liability rules; and the murderous intent, 
which petitioners did not possess, was attributed to them by 
means of the felony murder rule.41 These legal attributions 
may be sufficient to produce a conviction for the crime of 
murder, but they do not place the Tison brothers’ crimes af, or 
even near, the “core” of the most serious of crimes— the pre­
meditated and purposeful taking of life. Petitioners’ actions are 
at, or beyond, the periphery of such crimes.

The Arizona Supreme Court sought to bring petitioners’ 
crimes closer to the “core” of capital murder by creating yet 
another legal construct. It defined intent to kill to include “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 fel­
ony.” (J.A. 345, J.A. 363) Thus, under the Arizona Court’s 
definition of "intent to kill," a defendant could be constructively 
deemed to possess such an “intent" even if he both firmly 
believed that lethal force would not be used and categorically 
rejected the use of such force, but realized that there was some 
likelihood— no matter how slight— that someone “might” be 
killed.'2

Under the Arizona definition of intent to kill, as applied to 
the Tison brothers, not only is there no principled way to

37

« 'S «J .A .  177-80, J.A. 210-20.
■•sThis la certainly a different standard of intent than the one contemplated by 
the majority opinion in Emnund when it observed that, “ It would l>e very 
different if the likelihood of a killing in the course of a robbery were so 
substantial that one should share the blame for the killing if he somehow 
participated in the felony." 458 U.S. at 790 (emphasis addedX In this case, the 
petitioners did not believe there was any likelihood of killings, because their 
father— who they idolized— had promised them that no one would be hurt. 
They Itelieved that their father was rehabilitated and they “got committed to 
an act which was essentially ‘over their heads.’ " Moreover, the killings of the 
Lyons family by ( Jary Tison and Itandy (Ircenawalt was found by the sentenc­
ing court to have been "not essential" to the joint esca|>c, and thus not a 
predictable part of the joint crime. (.1. A. 288)



38

distinguish their case from the many first degree murders 
where the death penalty is not imposed, but there would be no 
principled way of distinguishing it from “many cases” of man­
slaughter, criminally negligent homicide or other similar 
crimes in which life is taken as a result of recklessness, indif­
ference or other failure to appreciate that lethal force “might be 
used” or the life “might be taken.”4-'* The punishment for such 
crimes of nonspecific intent (or "foreseeability” as the dissent­
ing Justices in Arizona characterized it) is never death in this 
country, and generally carries a relatively short term of years 
with no mandatory minimum prison sentence.44 I f  Georgias 
construction of its statute to permit the execution of a mur­
derer who actually killed after planning and premeditating his 
purposeful taking of life is unconstitutional, because his crime 
“cannot be said to have reflected a consciousness materially 
more ‘depraved’ than that of any person guilty of murder," then 
it surely follows that Arizona’s construction of its statute to 
permit the execution of two young brothers who neither killed, 
planned to kill, or specifically intended to kill is also unconstitu­
tional. A fair application of the rule in Godfrey v. Georgia to the 
facts of this case requires that here, as there, petitioners’ death 
sentences must be reversed.45

B. The Aggravating Factors Relied On By The Arizonn 
Courts Were At Least As Standardless, Unchanneled 
And Uncontrolled As The Ones Relied On In Godfrey.

In Godfrey, the jury found beyond a reasonable doubt that 
the crime was ‘“ outrageously or wantonly vile, horrible or 
inhuman in that it involved torture, depravity of mind, or an 
aggravated battey to the victim.’ Ga. Code §27-2534.1(b)(7) 
(15)78).” 446 U.S. at 422. The sentencing judge and the Georgia 
Supreme Court affirmed this finding of aggravation, after inde­
pendently assessing the evidence. Id. at 423. In reviewing that 
affirmance, this Court said that “the validity of the petitioner’s

nSee, vipm, at 22, 22 n.25, 23 and 23 n.26.
44.See, iiipm, n.8.
<sThis Court did not remand the death penally phase of the Godfrey judg­
ment back to the (Jcorgia courts (as it did in Cabtiua v. [hillock, 10(5 S.Ct. 
<>89). It reversed the death penalty and remanded the remainder of the case.

39

death sentences turns on whether, in light of the facts and 
circumstances of the murders that he was convicted of commit­
ting, the Georgia Supreme Court can be said to have applied a 
constitutional construction of the phrase ‘outrageously or wan­
tonly vile, horrible or inhuman in that |theyJ involved 
depravity of mind’. . . . ” Id. at 432. And this Court concluded 
"that the answer must be no.” Id.

A similar analysis of whether “ in light of the facts and cir­
cumstances” of the instant case, the Arizona Supreme Court 
can be said to have applied a constitutional construction of its 
own aggravating factors, must lead to the same conclusion: 
"that the answer must be no."

 ̂ In its original 1981 decision (J.A. 309-343), the Arizona 
Supreme Court affirmed two of the aggravating factors relied 
on by the sentencing judge.46 The first was that “ [tjlie defend­
ant committed the offense as consideration for the receipt, or in 
expectation of the receipt, of anything of pecuniary value.” 
(J.A. 334) This factor— pecuniary motive— is present in vir­
tually every felony murder case and fails to "distinguish this 
case, in which the death penalty was imposed, from the many 
cases in which it was not,n Godfrey v. Georgia, 446 U.S. at 433. 
Nearly every armed robbery, burglary and kidnapping 
involves a pecuniary motive. Enmund surely did.47 Indeed, in 
the instant case, the motive was far less pecuniary than in most 
felony murders where no death sentence is imposed. Here the 
petitioners’ underlying motive was clearly not pecuniary, but 
was rather a misguided attempt to reunite their family; the 
taking of the car was not really “pecuniary” and was only 
incidental to the escape and not even part of the original plan.48

wThe Arizona Supremo Court expressly limited its reliance to these two
factors. (J.A. 339)

47The trial court in Enmund found four statutory aggravating circum­
stances, one of which was that the murders were committed for pecuniary 
gain. As this Court noted, the Florida Supreme Court held that this finding 
was erroneous because “the findings that the murders were committed in the 
course of a robbery and that they were committed for pecuniary gain referred 
to the same aspects of petitioner's crime and must be treated as only one 
aggravating circumstance." Enmund v. Florida, 450 U.S. at 787.
'"Indeed, it was this very devotion to family that resulted in petitioners’ being 
on death row at all. Petitioners were tried together and convicted in Pinal



40

Hie Arizona Supreme Court’s reliance on this vague, open- 
ended and omni present "pecuniary” factor demonstrates the 
utter “standard ly ,” “unchanneled,” and “uncontrolled” dis­
cretion exercised by Arizona in determining who shall live and 
who shall die. Surely the presence of a pecuniary motive— even 
if it can be said to have existed here— does not distinguish this 
case, in which the death penalty was imposed, from the many" 
other cases where the pecuniary motive was far greater but 
where the death penalty was not imposed.

The second factor affirmed by the Arizona Supreme Court 
was strikingly parallel to the one relied on by the Georgia 
Supreme Court and struck down by this Court in the Godfrey 
case itself. The Arizona statutory language is that the murders 
were committed “in an especially heinous, cruel or depraved 
manner." (Statutory Appendix at 4a) In the first place,

County for their part in the prison breakout. They were then charged with 
first degree murder, kidnapping, robbery and theft of a motor vehicle in 
Yuma County in connection with the death of the Lyons family. They subse­
quently entered into plea agreements with the prosecutor, whereby the State 
agreed not to seek the death penalty in return for their testimony at Randy 
Greenawalt's trial. Pursuant to the agreement, each petitioner had an inter- 
view with the prosecutor and a Detective Brawley (J. A. 9f J.A. 3D, followed 
by an interview with the prosecutor and Randy Orecnnwalts attorney (J. A.
48, J.A. 87). At the second interview, where Ricky was unaccompanied by 
counsel, Randy Greenawalt’s attorney tried to question Ricky about events 
that occurred prior to the breakout. (J.A. 90) Ricky indicated that he was 
willing to discuss the prison escape and subsequent events, but did not want 
to discuss events preceding the breakout and the people involved in them. 
The prosecutor supported Ricky's desire not to discuss the pre-breakout 
events because "it’s obvious that Ricky at this time doesn t have his lawyer 
and told Greenawalt’s attorney, "We can catch it before the trial down there if 
you think ilk necessary." (J.A. 90) Greenawalt’s attorney agreed to deal with 
the issue at a later date. Id. Ricky then continued with his statement.
Randy Greenawalt’s trial liegan in February 1979. When the prosecutor tried 
to question Ricky Tison about the planning for the prison escape, he refused 
to testify. A recess was called, and the judge preskiing at Greenawallh trial, 
Judge Keddie, informed Ricky Tison that compliance with the plea agree­
ment required him to testify about events preceding the prison breakout and 
the people involved in its planning. Ricky Tison then stated that he wished to 
withdraw from the plea agreement, anil Raymond Tison stated that he 
wished to withdraw as well.(Transcript of February 7,1979 at 2-20.) Later in 
1979, petitioner’s mother, Dorothy Tison, was charged with conspiracy to 
assist in the escape and several other counts related to the breakout. In 1981, 
she pleaded nolo enntendere to one count of conspiring to assist in the escape 
and served nine months in prison. See, infra, n.3.

41

Enmund now precludes state courts from relying on the “man­
ner” in which the killings were carried out by the actual killers 
in non-triggerman cases. What must be considered in a non­
killer case are the individualized roles played by the non­
killers. Thus, if it had turned out that unbeknownst to 
Enmund, his co-defendants suddenly decided to torture the 
“old people” they were robbing, that fact could not be used as a 
dispositive aggravating factor against Enmund. Only 
Enmund’s own intent— "his culpability”48 49— can be considered, 
not that of his co-defendants who themselves selected the 
"manner” by which the killings would be carried out.

The logic of Enmund is especially applicable to the instant 
case. In concluding that the murders in this case were com­
mitted in an "especially heinous, cruel or depraved manner," 
the Arizona Supreme Court relied on the following:

The senselessness of the murders, given the inability of 
the victims to thwart the escape, especially in such an 
isolated area, and the fact that a young child, less than two 
years old, wno posed no threat to the captors, was indis­
criminately shot while in the arms of his mother, compels 
the conclusion that the actual slayers possessed a 
shockingly evil state of mind. Less violent alternatives 
which would have served their purposes in preventing 
their detection by authorities were obviously available. 
But they chose to slaughter an entire family and Theresa 
Tyson. The crimes were well within the plain meaning of 
the legislative language “ especially heinous * * * or 
depraved * * *.” (J.A. 337; emphasis added.)

The Arizona Court thus relied explicitly on the “shockingly 
evil state of mind" of the "actual slayers," rather than the 
surprised state of mind of the non-killer petitioners. Indeed, 
the very fact that the killings were “senseless" and “not essen­
tial" to serve the joint goals of all the participants serves to 
support the petitioners’ uncontroverted statements that they 
were surprised by the sudden turn of events and were unable to 
do anything to stop the killings.

*0Enmund v. Florida, 458 U S. at 798 (emphasis in original).



42

Finally, even if the “manner” by which the actual slayers 
decided to kill their victims could be considered against the 
non killer petitioners, there is no principled way of distinguish­
ing these killings from the ones carried out personally by 
Godfrey. Both cases involved multiple shotgun killings. Here 
they were carried out simultaneously (though one victim, 
unbeknownst to the killers or the petitioners, survived for a 
time). In Godfrey, they were deliberately carried out seriatem, 
with the additional terror to the daughter and mother-in-law 
who saw their loved one murdered.

Most importantly, the combination of Enmund and Godfrey 
requires that this Court compare the consciousness and 
depravity of the non-killer petitioners here with that of the 
actual killer in Godfrey and in those many other cases where 
(he death penalty has not been imposed. Any such comparison 
mandates the conclusion that there is no principled way to 
distinguish these non-killer petitioners who received the death 
penalty from the many killer and non-killer murder defendants 
(as well as manslaughter defendants whose actions posed a 
similar risk of death) who do not receive the death penalty. 
Indeed, if there is any principled distinction, it clearly cuts in 
favor of these petitioners who neither killed, planned to kill or 
specifically intended that anyone die. The imposition and affir­
mance of the death penalty on these petitioners requires the 
same conclusion reached in Godfrey: that the Arizona courts 
cannot be said to have applied a constitutional construction of 
the factors they relied on to affirm petitioners death sentences, 
and that their death sentences must be reversed.™

N'!n the decisions below rendered in 1984, the Arizona Supreme Court did 
not rely on any additional aggravating factors. It simply concluded that the 
death penalty imposed on petitioners did not violate the Enmund require­
ment of intent. But in defining intent as broadly and vaguely as it did—to 
include “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"— the Arizona Supreme Court committed a violation of 
Godfrey (in addition to its violation of Enmund). The Arizona Supreme 
Court's new definition of "intent" is now so vague, open-ended and all- 
encompassing that there is no principled way to distinguish those defendants 
on death row who come within that definition from the vast number of 
defendants who also come within that definition but who were not sentenced 
to death. Indeed, the overwhelming majority of defendants who themselves

43

CONCLUSION

In Godfrey vs. Georgia, this Court reversed a sentence of 
death on the ground that there was “no principled way to 
distinguish this case, in which the death penalty was imposed, 
from the many cases in which it was not. 446 U.S. at 433. Nor 
is there any principled or meaningful basis for distinguishing 
petitioners’ cases, in which the death penalty was imposed, 
from the two cases decided by the Court which most directly 
govern the legal issues now before the Court. In both those 
cases, the death penalties were reversed. Petitioners 
respectfully submit that their own culpability— measured by 
their “consciousness,” their actual participation, their youth, 
their relationship with their father and other relevant factors— 
was considerably less, and certainly no greater, than the 
culpability of Enmund or of Godfrey, or of most other defend­
ants convicted of murder but not sentenced to death.

Indeed, a thorough search of the cases has produced no set of 
facts with as few and as weak aggravating factors personally 
attributable to the defendants and as many and as strong

killed without specifically intending to in situations where they contemplated 
or anticipated that lethal force “might" be used or life might be taken are 
not even sentenced to lengthy prison terms. They arc typically charged only 
with lesser crimes of the manslaughter, criminally negligent h o n ^ u ^  or 
reckless endangerment variety. See, supra, at 23, 2.1 n.26 and 24 n.27 Thus, 
the Arizona Supreme Court’s newly contrived definition of intent to kill 
creates additional problems of standardlessness requiring reversal under 

Godfrey.
Arizona’s attempt to expand-in accordian-like fashion-its definition ofThe 
“intent to kill" necessary to permit execution, thus violates both the substan­
tive limitation imposed by Enmund and the Godfrey requirement of stan­
dards which distinguish in a “principled way" between the few who are 
sentenced to die an.l the many who are not. Under the expanded Arizona 
definition of intent to kill, the already large disparity between the vast 
number of defendants who could be sentenced to death and the miniscule 
number who actually would be sentenced to death wmdd mcrease dramat- 
ically This would exacerbate the problems addressed by this Court tn t)ir- 
mon and its progeny: the need for a principled and meaningful basis for 
distinguishing the few cases in which (the death penalty | is imposed from the 
many in which it is not." Therefore, given the petitioners comparatively low 
level of personal culpability for the actual killings, to place themwithinthe 
class of death-eligible persons would reinaugurate the very difficulties of 
“arbitrary" and “ freakish” application of the death penalty that this Court has 
stniRpIcd to eliminate since 1972.



44

litigating considerations as this one, in which a penalty of 
eath has ever been upheld.51 The mitigating factors in this 
ase include the following:

I Xlie petitioners were teenagers at the time of the crimes 
;ith no prior felony records;

2. The crimes were not committed for pecuniary gain, but 
êre rather a misguided effort— stimulated by their father, 

wther and other relatives— to unite a family;

3. "(Tjhere was a family obsession, the boys were ‘trained’ 
o think of their father as an innocent person being vic- 
iinized. . .”;

4. The petitioners agreed to participate in the escape only 
ifter reaching “an agreement with (their) dad that nobody 
vould get hurt because we wanted no one hurt”;

5. No shots were fired and no one was hurt during the 
ihase of the crime (the initial escape from prison) over which 
hey maintained control;

fi. Petitioners’ purpose in waving down the car and “kid- 
lapping” its occupants was solely to “ take the vehicle” without 
mrting anyone;

7. Petitioners were affirmatively led to believe, by the 
vords and actions of their father, that the occupants would be 
eft alive with a jug of water and a deliberately disabled car;

8. Petitioners’ father, Gary Tison, “exerted a strong, con­
sistent, destructive but subtle pressure upon these young­
sters” and “these young men got committed to an act which was 
'ssentially ‘over their heads’ ” ;

9. The killing of the occupants was "not essential to the 
lofendants’ ‘continuing evasion of a rrest,'” and was thus 
mpredictable precisely because of its senselessness;

10. The killings took the petitioners “by surprise as much 
is it took the family by surprise. . . ” ;

'The only mitigating factors relied on by the sentencing court were youth, 
ihscnce of felony record ami felony murder instructions. (.1. A. 2fl5)

45

11. Petitioners could not do anything to stop the killings 
once their father and Greenawalt suddenly started shooting; “ it 
was too late”;

12. Petitioners were convicted of murder on the basis of 
two legal constructs being superimposed on each other: The 
killings were attributed to them by means of accessorial lia­
bility; and the mens ren was attributed to them by means of the 
felony murder rule;

13. Petitioners have already suffered the death of their 
older brother who was killed in the course of the capture, and 
their father, who was found dead two weeks later;

14. Petitioners cooperated in the investigation and the 
search for the body of the missing victim, expressed remorse 
and regret over the killings, and agreed to testify against 
Greenawalt;

15. The plea bargain, which would have saved their lives, 
was broken only because they refused to provide information 
about their mother’s role in the escape plan (their mother 
eventually pleaded nolo contendere to conspiring to assist an 
escape and served nine months in prison);

16. This is a once-in-a-lifetime crime, motivated by a non­
recurring situation, and the psychologist appointed by the 
court to evaluate petitioners for sentencing concluded that 
“ these youngsters have a capacity for rehabilitation" and rec­
ommended a “structured and controlled setting”;

17. The presentence reports, written by the Chief Proba­
tion Officer, declined to recommend the death sentence;

18. I f  petitioners’ death sentences are reversed, they will 
still remain under a prison sentence of over 30 years;

19. The Arizona Supreme Court affirmed the death penalty 
in a split 3-2 decision, after acknowledging that petitioners did 
not kill, plan to kill, or specifically intend that the victims die.



40

Accordingly, for all these reasons, petitioners respectfully 
irge the Court to follow the clear precedents of Enmund and 
Godfrey, and ordei; the reversal of the lower court’s judgment 
ipholding petitioners’ death sentences.

Respectfully submitted

Is/__________________________________
Alan M. Dershowitz
232 Brattle Street
Cambridge, Massachusetts 02138

Counsel of Record

Stephen H. Oleskey 
Cynthia 0. Hamilton 
Ian Crawford 
Leila R. Kern 
Hale and Dorr 
00 State Street 
Boston, Massachusetts 02109 

Attorneys for Petit ioners

Susan Estricii 
Nathan Dershowitz 
Of Counsel

STATUTORY APPENDIX



la

S T A T U T O R Y  A P P E N D IX
1. Ariz. Code of 1939,43-116, in part, Ariz. Uev. Stat. Ann.

§ 13-139 (1956) (Repealed 1978).

All persons concerned in the commission of a crime 
whether it is a felony or misdemeanor, and whether they 
directly commit the act constituting the offense, or aid and 
abet in its commission, or, not being present, have advised 
and encouraged its commission, and all persons counsel­
ing, advising or encouraging children under the age of 
fourteen years, lunatics or idiots, to commit a crime, or 
who, by fraud, contrivance or force, occasion the drunken­
ness of another for the purpose of causing him to commit a 
crime, or who by threats, menaces, command or coercion, 
compel another to commit a crime, are principals in any 
crime so committed.

2. Laws of 1912, Cli. 35, §25, Ariz. Rev. Stat. Ann. § 13-140 
(1956) (Repealed 1978).

A ll persons concerned in the commission of a crime 
whether they directly commit the act constituting the 
offense, or aid and abet in its commission, though not 
present, shall be prosecuted, tried and punished as prin­
cipals, and no other facts need be alleged in any indictment 
or information against such a person than are required in 
an indictment or information against a principal.

3. Ariz. Code of 1939, 43-2901, Ariz. Rev. Stat. Ann. 
§ 13-451 (1956) (Repealed 1978)

A. Murder is the unlawful killing of a human being 
with malice aforethought.

B. Malice aforethought may be express or implied. It 
is express when there is manifested a deliberate intention 
unlawfully to take away the life of a fellow creature. It is 
implied when no considerable provocation appears or 
when the circumstances attending the killing show an 
abandoned and malignant heart.

4. Ariz. Code of 1939, 43-2902, Ariz. Rev. Stat. Ann. 
§13-452 (Supp. 1957-1978) (Amended 1973) (Repealed 1978).

A  murder which is perpetrated by means of poison or 
lying in wait, torture or by any other kind of wilful, delib-



2a

rite or premeditated killing, or which is committed in 
voiding or preventing lawful arrest or effecting an escape 
min legal custody, or in the perpetration of, or attempt to 
'crpetrate arson, tape in the first degree, robbery, bur- 
lair kidnapping, or mayhem, or sexual molestation of a 
hild under the age of thirteen years, is murder of the first 
iparee All other kinds of murder are of the second 
legree. As amended Laws 1973, Ch. 138, § 1.

Ariz. Code of 1939, 43-2903, Ariz. Rev. Stat. Ann. 
153 (Supp. 1957-1978) (Amended 1973) (Repealed 1978).

A. A person guilty of murder in the first degree shall 
•uffer death or imprisonment in the state prison for life, 
without possibility of parole until the completion of the 
service of twenty-five calendar years in the state prison, as 
letermined by and in accordance with the procedures 
provided in § 13-454.

B. A person guilty of murder in the second degree 
shali be punished oy imprisonment in the state prison for 
not less than ten years. As amended Laws 1973, Ch. 138,
52.

Laws of 1973, Ch. 138, § 5, Ariz. Rev. Stat. Ann. § 13-454 
p. 1957-1978) (Repealed 1978).

A. When a defendant is found guilty of or pleads guil ty 
to first degree murder, the judge who presided at the trial 
nr before whom the guilty plea was entered shall conduct a 
separate sentencing hearing to determine the existence or 
nonexistence of the circumstances set forth in subsection 
E and F for the purpose of determining the sentence to be 
imposed. The hearing shall be conducted before the court 
alone.

B. In the sentencing hearing, the court shall disclose 
to the defendant or his counsel all material contained in 
any presentence report, if one has been prepared, except 
such material as the court determines is required to be 
withheld from the defendant shall not be considered in 
determining the existence or nonexistence of the circum­
stances set forth in subsection E or F. Any information 
relevant to any of the mitigating circumstances set forth in 
subsection F may be presented by either the prosecution 
or the defendant, regardless of its admissibility under the

rules governing admission of evidence at criminal trials; 
but the admissibility of information relevant to any of the 
aggravating circumstances set forth in subsection E shall 
be governed by the rules governing the admission of evi­
dence at criminal trials. Evidence admitted at the trial, 
relating to such aggravating or mitigating circumstances, 
shall be considered without reintroducing it at the sen­
tencing proceeding. The prosecution and the defendant 
shall be permitted to rebut any information received at the 
hearing, and shall be given fair opportunity to present 
argument as to the adequacy of the information to estab­
lish the existence of any of the circumstances set forth in 
subsections E and F. The burden of establishing the exis­
tence of any of the circumstances set forth in subsection E 
is on the prosecution. The burden of establishing the exis­
tence of the circumstances set forth in subsection F is on 
the defendant.

C. The court shall return a special verdict setting 
forth its findings as to the existence or nonexistence of 
each of the circumstances set forth in subsection E and as 
to the existence or nonexistence of each of the circum­
stances in subsection F.

D. In determining whether to impose a sentence of 
death or life imprisonment without possibility of parole 
until the defendant has served twenty-five calendar years 
the court shall take into account the aggravating and 
mitigating circumstances enumerated in subsections E 
and F and shall impose a sentence of death if the court 
finds one or more of the aggravating circumstances enu­
merated in subsection E and that there are no mitigating 
circumstances sufficiently substantial to call for leniency.

E. Aggravating circumstances to be considered shall 
be tiie following:

1 The defendant has been convicted of another 
offense in the United States for which under Arizona 
law a sentence of life imprisonment or death was 
imposable.

2 The defendant was previously convicted of a fel­
ony in the United States involving the use or threat of 
violence on another person.



>
V

4a

3. In the commission of the offense the defendant 
knowingly created a grave risk of death to another per­
son or persons in addition to the victim of the offense.

4. The defendant procured the commission of the 
offense by payment, or promise of payment, of anything 
of pecuniary value.

5. The defendant committed the offense as consider­
ation for the receipt, or in expectation of the receipt, of 
anything of pecuniary value.

6. The defendant committed the offense in an 
especially heinous, cruel, or depraved manner.

F. Mitigating circumstances shall be the following:

1. His capacity to appreciate the wrongfulness of his 
conduct or to conform his conduct to the requirments of 
law was significantly impaired, but not so impaired as to 
constitute a defense to prosecution.

2. He was under unusual and substantial duress, 
although not such as to constitute a defense to prosecu­
tion.

3. He was a principal, under 5 13-452, Arizona 
Revised Statutes, in the offense, which was committed 
by another, but his participation was relatively minor, 
although not so minor as to constitute a defense to 
prosecution.

4. He could not reasonably have foreseen that his 
conduct in the course of the commission of the offense for 
which he was convicted would cause, or would create a 
grave risk of causing, death to another person. Added 
Laws 1973, Ch. 138, § 5.

)TE: The preceding statutes were those in effect at the
time of the crime for which petitioners stand con­
victed. They were then repealed and replaced when
Arizona revised its criminal code, effective October
1, 1978.

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