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Clark v. Ricketts

filed: August 9, 1991.

JAMES DEAN CLARK, PETITIONER-APPELLANT,
v.
JAMES R. RICKETTS, ET AL., RESPONDENTS-APPELLEES



Reargued and Resubmitted March 21, 1991, San Francisco, California. Appeal from the United States District Court for the District of Arizona; D.C. No. CV-84-0350-WDB; William D. Browning, District Judge, Presiding. {Counsel}{Q}Counsel{/Q}{/Counsel}

Michael R. Urman, DeConcini, McDonald, Brammer, Yetwin, Lacy & Zimmerman, Tucson, Arizona, for the Petitioner-Appellant.

Bruce M. Ferg, Assistant Attorney General, Tucson, Arizona, for the Respondents-Appellees.

Jerome Farris, Melvin Brunetti and David R. Thompson, Circuit Judges. Opinion by Judge David R. Thompson.

Author: Thompson

Order

The opinion in Clark v. Ricketts, filed September 28, 1989 and published at 886 F.2d 1152, is withdrawn.

THOMPSON, Circuit Judge:

FACTS

An Arizona jury convicted appellant James Dean Clark of four counts of first-degree murder. One of the four murder victims was fatally stabbed. Another was shot to death. A couple, Mr. and Mrs. Thumm, were shot and killed. The couple's credit cards and rings, a saddle, their car and several guns were stolen. Clark was apprehended, charged with the murders, tried and convicted. Following his convictions, a separate non-jury sentencing hearing was held by the trial judge pursuant to Ariz. Rev. Stat. 13-902.*fn1 The sentencing judge found three aggravating factors present in the case:

(1) Clark created a grave risk of death to Mrs. Thumm after he first shot Mr. Thumm in the hallway of their home, Ariz. Rev. Stat. § 13-902(F)(3);

(2) Clark murdered the Thumms with the expectation of receiving some pecuniary gain - credit cards, jewelry and an automobile, Ariz. Rev. Stat. § 13-902(F)(5); and

(3) Clark committed the offenses in an especially cruel and depraved manner, Ariz. Rev. Stat. § 13-902(F)(6).

In mitigation, Clark asserted that he was only twenty years old at the time of the crimes, had a poor home life during his formative years, lacked any adult criminal record, suffered emotional problems stemming from his antisocial personality, and had been cooperative with the police. The sentencing judge found the mitigating factors not sufficiently substantial to warrant leniency and sentenced Clark to death on each of the four counts.

A. Procedural History

Clark filed a direct appeal with the Arizona Supreme Court. That court found that the first aggravating circumstance was not present because Mrs. Thumm was actually in another room at the time Mr. Thumm was killed; therefore, she was not within the "zone of danger" contemplated by section 13-902(F)(3). State v. Clark, 126 Ariz. 428, 616 P.2d 888, 895-96, cert. denied, 449 U.S. 1067, 66 L. Ed. 2d 612, 101 S. Ct. 796 (1980). The court further determined that none of the murders had been committed in an especially cruel manner because there was no evidence that any of the victims had suffered any pain. Id. 616 P.2d at 896. The court upheld the trial judge's findings that the murders were committed for pecuniary gain and in a depraved manner. After independently reviewing all the evidence, the court concluded that the aggravating circumstances had been established and that the mitigating circumstances were not sufficiently substantial to call for leniency. Id. at 897. The court also determined that Clark's sixth amendment right to confront witnesses had not been violated when the prosecution called a John Doe witness to testify against him. Id. at 891-93.

After pursuing his state court remedies, Clark filed a petition for a writ of habeas corpus in the United States District Court for the District of Arizona pursuant to 28 U.S.C. § 2254. His petition was denied by summary judgment and this appeal followed.

B. Issues on Appeal

We consider four issues on appeal:

1. Whether Clark's sixth amendment right of confrontation was violated when the state trial court precluded him from eliciting, during cross-examination, the name ...


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