Opinion
No. 2 CA-CR 2016-0418
12-08-2017
THE STATE OF ARIZONA, Appellee, v. ROBERT DOUGLAS SMITH, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Lacey Stover Gard, Chief Counsel, Tucson By Jeffrey Sparks, Assistant Attorney General, Phoenix Counsel for Appellee Joel Feinman, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pima County
No. CR05669002
The Honorable Richard D. Nichols, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Lacey Stover Gard, Chief Counsel, Tucson
By Jeffrey Sparks, Assistant Attorney General, Phoenix
Counsel for Appellee Joel Feinman, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Espinosa concurred. BREARCLIFFE, Judge:
¶1 This is Robert Smith's appeal from his resentencing after his 1982 death sentence was vacated in a federal habeas proceeding, see Smith v. Ryan, 813 F.3d 1175 (9th Cir. 2016) ("Smith II"). Smith claims that the trial court erred in ordering his life term of imprisonment to be served consecutively to the consecutive prison terms imposed in 1982 on his sexual assault and kidnapping convictions, and for not giving him credit for all time served since his arrest. We affirm.
¶2 We need not here repeat the gruesome details of Smith's crimes; those are laid out in our supreme court's opinion in State v. Lambright, 138 Ariz. 63 (1983), overruled on other grounds by Hedlund v. Sheldon, 173 Ariz. 143, 145-46 (1992). In sum, in 1980, Smith, his codefendant Joe Lambright and Kathy Foreman were travelling in a car and picked up the victim, who was hitchhiking. Id. at 66. After Smith sexually assaulted her twice, he began choking her; Lambright then stabbed her multiple times and struck her in the head with a rock, killing her. Id. Foreman testified against the two men at trial, and both were convicted of sexual assault, kidnapping, and first-degree murder. Id. at 66-67. Smith "was sentenced to death for the murder, to 21 years['] imprisonment for the kidnapping, and to 21 years['] imprisonment for the sexual assault, to be served consecutively to the sentence for kidnapping." State v. Smith, 138 Ariz. 79, 80 (1983) ("Smith I"). Our supreme court affirmed those convictions and sentences. Id. at 87. Following federal habeas proceedings, the United States District Court found Smith's claims under Atkins v. Virginia, 536 U.S. 304 (2002) to be "without merit." Smith v. Ryan, No. CV-87-234-TUC-CKJ, 2012 WL 6019055, at *13 (D. Ariz. Dec. 3, 2012). In 2016, however, in a divided opinion, the Ninth Circuit Court of Appeals vacated the sentence of death, concluding Smith was ineligible for the death penalty under Atkins because of intellectual disability. Smith II, 813 F.3d at 1202. Thus, the circuit court ordered the district court to "return the case to the state court to reduce Smith's sentence to life or natural life." Id.
¶3 Following return of the case, the trial court set the matter for resentencing. In its sentencing memorandum, the state asked that the sentence for murder "run consecutively to the 42 years that were imposed for kidnapping and sexual assault." Smith argued consecutive sentences were improper because, pursuant to A.R.S. § 13-708 (1978), the sentences were presumed to be concurrent with his death sentence and double jeopardy protections and Arizona law required that he be credited for time served. He further argued that, even if the court had authority to impose consecutive sentences, it should impose concurrent sentences for various reasons, including his "intellectual and adaptive functioning defects," "difficult upbringing," lack of "capacity to understand the wrongfulness of his actions," and his comparative culpability as compared to Lambright.
All references to § 13-708 in this decision are to the version of the statute in effect at the time of the offenses. See 1977 Ariz. Sess. Laws, ch. 142, § 57 (added as A.R.S. § 13-904); 1978 Ariz. Sess. Laws, ch. 201, §§ 104, 108 (renumbered as § 13-708). --------
¶4 The trial court resentenced Smith to a consecutive life term. It found that Lambright was "more culpable," Foreman had not been prosecuted, Smith had diminished mental functioning and capacity, Smith's childhood had been difficult, and he had been "employ[ed] while incarcerated." However, it further found that each of Smith's crimes "resulted in separate harm, trauma and suffering being inflicted upon the victim" and was "horrific in its own right," and that Smith had "initiated" the murder, which "took a long time to carry out." This appeal followed.
¶5 On appeal, Smith raises many of the same arguments he raised below in claiming that the consecutive life term is unlawful and that he is entitled to credit for all of the time he has been incarcerated. We rejected the same arguments in Lambright's appeal from his consecutive life sentence. State v. Lambright, 243 Ariz. 244, ¶¶ 19-26 (App. 2017). We reject Smith's arguments for the same reasons and need not state them again here.
¶6 Smith further claims that the trial court abused its discretion by imposing a consecutive life sentence. "A trial court has broad discretion in sentencing and, if the sentence imposed is within the statutory limits, we will not disturb the sentence unless there is a clear abuse of discretion." Id. ¶ 9, quoting State v. Ward, 200 Ariz. 387, ¶ 5 (App. 2001). "Whether to order consecutive terms was then, as it is now, for the trial court to determine in the exercise of its sentencing discretion." Id. ¶ 30. "This court will not disturb the sentence unless the court's decision was arbitrary and capricious and therefore an abuse of discretion." Id. The court must consider fully all relevant facts in sentencing, but "the weight to be given any factor asserted in mitigation falls within [its] sound discretion," and we will not reweigh the factors found by the court. State v. Vermuele, 226 Ariz. 399, ¶¶ 15-16 (App. 2011).
¶7 Smith first argues that the trial court misstated "the law of separate harms" because it noted at sentencing that "in considering whether to impose consecutive sentences the main issue is whether each of these crimes resulted in separate harm, trauma, and suffering being inflicted on the victim, and the answer is yes." Smith correctly points out that whether a crime caused separate harm may be relevant to whether consecutive sentences are permitted under A.R.S. § 13-116. See State v. Urquidez, 213 Ariz. 50, ¶ 6 (App. 2006). He argues, therefore, that the court erred because it found the fact of separate harms to be a "controlling factor in determining whether [he] should receive consecutive sentences." Smith is mistaken about the court's statement. The court plainly did not find it was bound to give consecutive sentences because Smith's conduct resulted in separate harms to the victim. It listed other factors weighing for and against consecutive sentences—which would have been unnecessary had it treated separate harms as the "controlling factor" as Smith asserts. At most, it gave this factor considerable weight and Smith has cited no authority holding that it was error to do so.
¶8 Smith further argues that the trial court failed to give enough weight to the mitigating evidence he offered and erred by finding it "outweighed by information provided by Kathy Foreman." We will not, however, reweigh sentencing evidence. Vermuele, 226 Ariz. 399, ¶¶ 15-16. Smith has not established the court's decision was arbitrary and capricious. See Lambright, 243 Ariz. 244, ¶ 30.
¶9 The only specific error that Smith alleges is that the trial court based the sentence on "unreliable information" and violated "the law of the case" by relying in part on Foreman's testimony that Smith wanted the song "We Are the Champions" played after the murder. See State v. Lambright, 138 Ariz. 63, 67 (1983) (noting that, after the murder, the trio "engaged in a macabre celebration, playing a tape of music entitled 'We Are the Champions'" as they drove away); Smith I, 138 Ariz. at 85-86 (stating Foreman testified "Smith was the person who requested that the tape . . . be played"). He claims that, because the supreme court in Smith I "had already found this was not established," the trial court could not revisit the issue.
¶10 We agree with the state that Smith's assessment of Smith I is wrong. "'Law of the case' concerns the practice of refusing to reopen questions previously decided in the same case by the same court or a higher appellate court." State v. Whelan, 208 Ariz. 168, ¶ 8 (App. 2004), quoting Davis v. Davis, 195 Ariz. 158, ¶ 13 (App. 1999). In Smith I, the supreme court merely stated that the "evidence suggesting Smith also had a heinous and depraved attitude toward the crime"—of which the playing of the song was merely one piece of evidence—was "equivocal." 138 Ariz. at 86. The court did not hold that the original sentencing court had erred in finding Smith had requested the song be played or that Foreman's testimony was unreliable. Id. Thus, the law of the case is not implicated, and the trial court was not bound to find Foreman's testimony unreliable.
¶11 We affirm Smith's term of life imprisonment, imposed consecutively to the terms of his sexual assault and kidnapping convictions.