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Patrick Gene POLAND

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Armored car robbery
Number of victims: 2
Date of murders: May 24, 1977
Date of arrest: May 1978
Date of birth: March 8, 1950
Victims profile: Russell Dempsey and Cecil Newkirk (armored car drivers)
Method of murder: Drowning
Location: Mohave County, Arizona, USA
Status: Executed by lethal injection in Arizona on March 15, 2000
 
 
 
 
 
 

Summary:

Patrick Poland is on death row for murdering two armored car drivers in 1977. His brother Michael Poland was executed last in 1999 for his participation in the same crime.

On May 24, 1977, two Purolator guards, Russell Dempsey and Cecil Newkirk, left Phoenix in an armored van on their run to banks in Prescott, Sedona and Flagstaff.

On Interstate #17 they were stopped by the Polands, who were disguised as highway patrolmen and were driving a car fitted with emergency lights. The Polands took the guards captive and removed close to $300,000 in cash.

On May 25, 1977, authorities found the abandoned Purolator van. That morning, Michael rented a boat at the Lake Mead marina and piloted the boat to a little used landing, where he met his brother, Michael Kent Poland.

They put the guards into canvas bags, took them across the lake, and dumped them into the water. The bodies surfaced 3 weeks later in a cove on the Nevada side of the lake. The Polands were convicted in federal court on robbery and kidnaping charges, and in state court on the murder charges.

In 1982 the Arizona Supreme Court reversed the Polands' convictions, finding that the jurors had improperly considered extrajudicial information, including the fact of the Polands' prior federal convictions for the same offense. On retrial later in 1982, the Polands were again convicted and sentenced to death.

 
 

Arizona Department of Corrections

On May 24, 1977, two Purolator guards, Russell Dempsey and Cecil Newkirk, left Phoenix in an armored van on their run to banks in Prescott, Sedona and Flagstaff.

At the Bumblebee Road exit on Interstate- 17, they were stopped by the Polands, who were disguised as highway patrolmen and were driving a car fitted with emergency lights. The Polands took the guards captive and removed close to $300,000 in cash.

On May 25, 1977, authorities found the abandoned Purolator van. That morning, Michael rented a boat at the Lake Mead marina and piloted the boat to a little used landing, where he met his brother. They put the guards into canvas bags, took them across the lake, and dumped them into the water.

The bodies surfaced 3 weeks later in a cove on the Nevada side of the lake. The Polands were convicted in federal court on robbery and kidnaping charges, and in state court on the murder charges.

PROCEEDINGS

Presiding Judge: Paul G. Rosenblatt
Prosecutors: Billy Hicks (first trial) Melvin McDonald, Wesley Jennings, Steven Twist (second trial)
Start of Trial: October 23, 1979 (first trial) October 18, 1982 (second trial)
Verdicts: November 24, 1979 (first trial) November 18, 1982 (second trial)
Sentencing: April 9, 1980 (first trial) February 3, 1983 (second trial)

Aggravating Circumstances:

Prior conviction involving violence , Pecuniary gain, Especially heinous/cruel/depraved (struck on appeal)

Mitigating Circumstances:

None sufficient to call for leniency

 
 

Last Meal

No Last Meal Request

 
 

Factual Background

Patrick Poland is on death row for murdering two armored car drivers in 1977. His brother Michael Poland was executed last year for his participation in the same crime.

In February of 1977, Patrick, using the name Mark Harris, purchased a taser gun. Michael was also present when the gun was purchased.

Patrick also purchased a police scanner in February, 1977. Michael contemporaneously purchased a police scanner, using the name Mark Harris in making the purchase. Michael used the name Mark Harris again in preparing some false identification.

That same month, Michael visited his brother-in-law, John Eaton, in Flagstaff, Arizona. Mr. Eaton was a campus police officer at Northern Arizona University, and a reserve officer with the Flagstaff Police Department. During this visit, Michael spent approximately 2 hours reading police manuals that Mr. Eaton had in his home, and he discussed the use of scanners with Mr. Eaton.

On April 25, 1977, a man using the name Mark Harris purchased three large canvas bags (approximately 6 feet in length) from Phoenix Tent and Awning. In May of 1977, Patrick and Michael purchased an emergency light bar, identical to those used on the roofs of police vehicles.

They claimed the light bar was to be used in their towing business, but they had no such business. Patrick and his brother returned to the store twice after the purchase because the bar was not functioning properly. Store employees eventually repaired the item.

Also in May 1977, Michael called a friend, David Manzer, who was a former police officer with the city of Phoenix. Michael Poland asked Manzer about the belt and holster he had worn as a police officer, and Mr. Manzer told him where to purchase that type of equipment.

On May 10, 1977, at 8:09 a.m., Michael made a collect telephone call to his home from a pay phone in Black Canyon City. At approximately the same time of day, a Purolator armored van passed by Black Canyon City on its scheduled run to Prescott, Sedona, and Flagstaff.

Two weeks later, on May 24, 1977, two Purolator driver-guards, Russell Dempsey and Cecil Newkirk, left the Purolator garage in Phoenix at 8:00 a.m. to begin their scheduled run to banks in Prescott, Sedona, and Flagstaff.

The van carried a total of $328,150 in cash, of which $288,000 was currency. Bernice Snyder and her husband Arnold were traveling from Phoenix to Sedona on Interstate 17 that morning.

Near Black Canyon City, a car they believed to be a law enforcement vehicle passed them with its emergency lights flashing. There were no Department of Public Safety officers on duty in that area that morning.

Shortly after the car passed them, Mrs. Snyder saw a light-colored car and a Purolator van stopped near the Bumblebee Road exit. Mrs. Snyder saw Michael Poland wearing a uniform and standing near the light-colored car.

Edna Acker and her husband were also traveling northbound on Interstate 17 that morning. Mrs. Acker saw the Purolator van stopped off to the side of the freeway and a man in uniform standing near the van. She later identified the man as Patrick.

Dempsey and Newkirk had been scheduled to make their first stop that morning at the Great Western Bank in Prescott. At approximately 10:30 a.m., Purolator officials learned that Dempsey and Newkirk had not arrived at the Prescott bank. Purolator officials then began calling law enforcement agencies.

At approximately 2:30 p.m., Patrick and Michael arrived at their father's home and borrowed his pickup truck. They also borrowed a tarpaulin from their father. Mr. Poland had been using the tarpaulin to cover some sacks of cement.

On May 25, 1977, at around 6:00 a.m., authorities found the Purolator van west of Interstate 17 near the Bumblebee Road exit. A $500 bill and a total of $34,650 in coins remained in the van, and officers observed blood stains in several areas inside the van.

The blood was determined to be human blood type O. Dempsey had type O blood. Law enforcement officers searched unsuccessfully for Dempsey and Newkirk.

That same morning, Michael rented a boat from Ralph Van Buskirk at the Temple Bar Marina on the Arizona side of Lake Mead. Michael was waiting outside when Van Buskirk opened the rental shop at 6:15 a.m. Michael told Van Buskirk that he planned to meet someone at Bonelli Landing. Bonelli Landing is approximately 14 miles from the Temple Bar Marina.

At around 2:00 p.m., Michael and another man returned the boat, telling Van Buskirk that their pickup truck was stuck at Bonelli Landing. Patrick eventually contacted Stan Sekulski, a tow truck operator. Sekulski drove Michael and his companion back to Bonelli Landing.

Upon arrival, Sekulski saw the truck at the water's edge with all four wheels in the water. The back of the truck was facing the lake and the truck's tailgate was down. Mr. Sekulski attached a tow line to the front axle of the truck, and, after around 45 minutes, freed the truck from the mud.

Within a week, Patrick and Michael, who had been in severe financial straits, were flush with money. They made numerous cash purchases and repaid loans in cash, spending more than $100,000.

On June 16, 1977, a boater discovered a body floating in the waters of Debbie's Cove on the Nevada side of Lake Mead. Debbie's Cove is approximately 5 miles due north of Bonelli Landing. Bonelli Landing is also the closest point in Arizona to Debbie's Cove. A canvas bag covered the upper portion of the body.

On June 23, 1977, a second body surfaced approximately 100 yards from the spot where the first body had been found. No canvas bag covered this body, but divers found such a bag a short distance away from the body.

On August 15, 1977, divers found a third canvas bag beneath the waters of Debbie's Cove. This bag contained a tarpaulin and a blanket. Divers also found two revolvers and a bent license plate on the bottom of the cove near the bag. The license plate bore a depiction of the Arizona state flag, and was similar to plates used by the Department of Public Safety.

The canvas bags recovered from Debbie's Cove were those that "Mark Harris" had purchased from Phoenix Tent and Awning. The tarpaulin was identified as being of the type Patrick and his brother had borrowed from their father and never returned. Particles found on the tarpaulin were consistent with those that would be found on a tarpaulin that had been used to cover sacks of cement. The revolvers belonged to Dempsey and Newkirk.

The medical examiner for Clark County, Nevada, performed autopsies on the two bodies, and he identified them as Dempsey and Newkirk. Both bodies were in advanced stages of decomposition, and had been in the water for a substantial length of time.

The medical examiner concluded that both men had drowned, although there was a possibility that Dempsey might have died from a heart attack before his body was placed in the water.

 
 

Procedural Background

On July 27, 1977, F.B.I. agents executed a search warrant at Michael Poland's home. The search uncovered two handcuff cases, a scanner, over $13,000 in cash, a taser gun receipt bearing the name of Mark Harris, and a police-type gun belt. Agents searched Michael's car, and discovered a siren that could be activated by a switch inside the passenger compartment.

Simultaneously, F.B.I. agents executed a search warrant at Patrick's house. The agents found, among other things, over $15,000 in currency and a wallet with an insert for a law enforcement- type badge.

On May 17, 1978, the Federal government charged Patrick and Michael Poland with five counts of bank robbery, two counts of kidnapping, and two counts of murder in United States of America v. Michael Kent Poland and Patrick Gene Poland, CR 78319-TUC-WCF (TFM).

In July of 1978, the United States Attorney prosecuting the case offered the Polands a plea agreement wherein they would plead guilty to federal murder charges.

In return, the federal government would move to dismiss the bank robbery and kidnapping charges, and would recommend that the State of Arizona not prosecute the Polands for any crime related to the robbery, kidnappings and murders in question.

The Polands rejected the proposed plea agreement. The United States' Attorney's Office subsequently moved to dismiss both murder counts, and the district court dismissed those counts.

On February 14, 1979, Patrick was convicted of five counts of bank robbery and two counts of kidnapping. On March 14, 1979, the district court sentenced Patrick to 100 years imprisonment, and ordered that Patrick pay a $50,000 fine.

On April 26, 1979, the State of Arizona charged Patrick and his brother with two counts of first-degree murder in connection with the same incident underlying their federal court convictions for robbery and kidnapping. Following a jury trial, the Polands were convicted of both counts of first-degree murder, and were sentenced to death on both counts.

On April 13, 1982, the Arizona Supreme Court reversed the Polands' convictions, finding that the jurors had improperly considered extrajudicial information, including the fact of the Polands' prior federal convictions for the same offense. The Court remanded the matter for a new trial.

On June 8, 1982, the Yavapai County Attorney filed a motion to dismiss the case without prejudice, claiming that there was insufficient evidence to proceed to trial at that time.

At a hearing on this motion, the Yavapai County Attorney argued that the quantity and quality of the evidence had degenerated significantly due to the passage of time subsequent to the crime, and due to evidentiary rulings by the Arizona Supreme Court. Patrick's counsel did not oppose the motion to dismiss, and asked that the dismissal be with prejudice.

The trial court denied the motion, noting that the defendants and the public were entitled to a trial, and that any problems with the evidence could be worked out. At a second hearing, the Yavapai County Attorney said that he would not move to have the matter set for trial and would decline to prosecute.

The trial court stated that the county attorney could not simply abandon his responsibility to prosecute, and suggested that the court could appoint a special prosecutor in the case.

The trial court also suggested that the county attorney ask the Arizona Attorney General's Office for assistance in prosecuting the matter.

Finally, the trial judge concluded that, having heard all the evidence at the trial, he could not find that insufficiency of the evidence was a valid reason for dismissing the matter.

United States Attorneys Melvin McDonald and Roland Jennings contacted the Yavapai County Attorney to offer their assistance in prosecuting the case, and after being appointed as special Yavapai County prosecutors, those two men, together with an Assistant Arizona Attorney General, took over the state prosecution.

The Polands' second trial commenced on October 18, 1982, and, after several weeks of trial, the jury returned verdicts finding Patrick and Michael guilty of both of the murder charges. On February 3, 1983, the trial court sentenced Patrick to death for both murder counts. In its Special Verdict filed that same day, the trial court found as aggravating circumstances that Patrick had committed the murders in an especially cruel, heinous, or depraved manner, and for pecuniary gain. The trial court found mitigating circumstances, but concluded they were not sufficiently substantial to call for leniency.

On March 25, 1985, the Arizona Supreme Court affirmed Patrick's convictions and death sentence. State v. Poland, 144 Ariz. 412, 698 P.2d 207 (1985). The Arizona Supreme Court reversed the trial court's finding that the murders were especially cruel, heinous, or depraved, but affirmed the death sentence after finding no mitigating circumstances sufficient to call for leniency.

The United States Supreme Court granted certiorari to review the issue of whether the double jeopardy clause bars further capital sentencing proceedings when, on appeal from death sentence, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied but does not find the evidence insufficient to support the death penalty. On May 5, 1986, the Court affirmed the Arizona Supreme Court's ruling on this issue.

On November 4, 1987, Patrick filed a petition for post-conviction relief, raising 32 claims. On November 15, 1988, following an evidentiary hearing, the trial court denied the petition, and the Arizona Supreme Court subsequently denied review.

On June 10, 1993, Patrick filed a second post-conviction relief petition, raising 17 issues. The petition was denied on the basis of preclusion.

Patrick filed an amended petition for writ of habeas corpus in the federal district court in January 1993. The district court denied the petition, and that decision was affirmed by the Ninth Circuit on March 1, 1999. The United States Supreme Court denied certiorari review on October 4, 1999, and the Arizona Supreme Court issued the warrant for execution on February 9, 2000.

Patrick has filed a third petition for post-conviction relief in Yavapai County Superior Court, that remains pending as of today's date. The petition raises three claims (1) a Jones issue (arguing that Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999), changes the law with regard to whether a defendant is entitled to a jury determination of aggravating circumstances); (2) a claim that his lengthy incarceration constitutes cruel and unusual punishment under Lackey v. Texas, 514 U.S. 1045 (1995); and (3) jury misconduct based on jurors' consideration of taser gun evidence.

EXECUTION March 15, 2000 - The Execution of ADC inmate: Patrick POLAND #41126 by lethal injection was carried out today at ASPC Florence. The execution began at 3.03pm and was completed at 3.07pm.

Poland's last words included an apology to the families of the victims. His last words were, "If I may, once again, to the Newkirk and Dempsey families, please accept my apologies. I'm sincere. I'm sorry for the pain and suffering I have caused. I do thank you for your forgiveness. I ask my family to forgive me for the pain I have caused them. I ask all my friends and people who believed in me to please forgive me, and I ask the woman I love to remember I will always love her."

[Source: Arizona Attorney General's Office]

 
 

ProDeathPenalty.com

On May 24, 1977, two Purolator guards, Russell Dempsey and Cecil Newkirk, left Phoenix in an armored van on their run to banks in Prescott, Sedona and Flagstaff.

At the Bumblebee Road exit on Interstate-17, they were stopped by Michael and Patrick Poland, who were disguised as highway patrolmen and were driving a car fitted with emergency lights. The Polands took the guards captive and removed close to $300,000 in cash.

On May 25, 1977, authorities found the abandoned Purolator van. That morning, Michael rented a boat at the Lake Mead marina and piloted the boat to a little used landing, where he met his brother. They put the guards into canvas bags, took them across the lake, and dumped them into the water. The bodies surfaced 3 weeks later in a cove on the Nevada side of the lake.

The Polands were convicted in federal court on robbery and kidnapping charges, and in state court on the murder charges.

The Polands stole about $280,000, but only $127,000 was accounted for when they were arrested the next year. Michael Poland was executed on June 16, 1999.

 
 

Fight the Death Penalty USA

Patrick Poland, XX, 2000-03-15, AZ

Patrick Poland was executed by injection yesterday, nearly 23 years after he and his older brother robbed an armored van of $288,000, put the two guards into canvas bags and dropped them into Lake Mead.

From where he was strapped to a gurney, Poland looked around at the execution witnesses and apologized to the families of his victims, Cecil Newkirk and Russell Dempsey. "I'm sincere. I'm sorry for the pain and suffering I have caused. I do thank you for your forgiveness,'' Poland said. He also asked his family and friends for forgiveness. "And I ask the woman I love to remember I will always love her,'' Poland said, referring to his girlfriend, Sherri Jo Christensen, who attended the execution. Earlier, he had mouthed the words "I love you'' to Christensen and blown her a kiss.

As the lethal chemicals began flowing at 3:03 p.m., Poland's head jerked four times. His body shook slightly, his head rolled to the side and his eyes shut. He was pronounced dead at 3:07 p.m. Poland, 50, became the 21st inmate executed since the state resumed executions in 1992. The U.S. Supreme Court denied three requests for stays yesterday.

Michael Poland, the alleged mastermind of the crimes, was executed for the crimes last June at age 59. Michael and Patrick Poland were dressed in fake Highway Patrol uniforms and were driving a rental car equipped with emergency lights when they stopped the guards' Purolator van on Interstate 17 near Cordes Junction on May 24, 1977.

The truck was ransacked of cash and coins and Newkirk and Dempsey were driven 250 miles to Lake Mead. The next day, the Polands wrapped Newkirk and Dempsey in custom-made canvas bags weighted with rocks and pushed them from a rented boat into the lake.

Prosecutors said the guards may have still been alive when they were thrown into the water. It took nearly a month for the guards' bodies to surface on the Nevada side of the lake.

The brothers were arrested in May 1978 - 51 weeks after the crimes - after leaving a trail of evidence, including spending $127,000 of the money in their hometown of Prescott. Several people involved in the case said Patrick Poland seemed sorry for what he had done. Some had even pleaded for his life.

A. Melvin McDonald, who prosecuted the Poland brothers in the second of two trials and won conviction in 1982, was among those who had a change of heart and wanted to see Patrick Poland's life spared. "I hope that his death will bring peace,'' said McDonald, one of the witnesses yesterday. "Mr. Poland paid for this crime each and every day for 23 years. I think he had genuine remorse. I felt justice was done in the execution of the first brother. "I felt mercy could have been done today by giving Patrick Poland life in prison.'' Yavapai County prosecutor Arthur Markham, who did not prosecute the case, spoke to some of the victims' relatives afterward and said they felt his expressions of remorse were truthful. "A man would not lie just before death,'' Markham said.

(Source: Associated Press / APBNews)

 
 

Arizona Man Follows Brother to Death Chamber

By Robert Anthony Phillips - APBNews Online

March 15, 2000

FLORENCE, Ariz. (APBnews.com) -- Patrick Poland's family believes that he was led into a life of robbery, kidnapping and murder because of abuse and an "evil" older brother who dominated and beat him. And this brother has now led Patrick Poland into an early grave with him, a family member says.

Poland was executed by lethal injection today, one week after his 50th birthday. He died in the same death chamber that his brother, Michael Poland, 59, was executed in on June 17, 1999. The brothers were sentenced to death for killing two guards during a $300,000 armored van robbery in 1977.

Before he died, Poland apologized for the pain he caused to his family and the families of the men he murdered, and asked his girlfriend to remember him.

'Please forgive me'

"I'm sincere," Poland said. "I'm sorry for the pain and suffering I have caused. I do thank you for your forgiveness. I ask my family to forgive me for the pain I caused them. I ask all my friends and people who believed in me to please forgive me. And I ask the woman I love to remember I will always love her."

The woman, identified as Sherrie Jo Christensen, witnessed the execution from a viewing area, Dan Vannelli, a warden for the state Department of Corrections, told APBnews.com. "She sobbed quietly and was consoled by [another witness]," Vannelli said. The deadly mixtures of chemicals began flowing into Poland at 3:03 p.m. and he was pronounced dead at 3:07 p.m., corrections officials said. Witnesses said that as the chemicals flowed into his arm, Poland wiggled and fluttered his eyes.

Links (Related Documents):

Execution documents for Patrick Poland

Patrick Poland's probation report

Former Prosecutor Melvin McDonald's letter to Arizona Board of Executive Clemency

A letter from Jeffrey Poland, the twin brother of Patrick, in an effort to save him from being executed

Family tells of 'evil' brother Poland's execution came less than 24 hours after the Arizona Board of Executive Clemency voted 4-1 not to spare his life. "He knew he had no chance," said Melvin McDonald, the prosecutor who put the Poland brothers on death row but then had a change of heart and tried to save Patrick Poland from execution. "But the value of the hearing was to let him know during the last day of his life that people cared for his, and that his family truly loves him. It was an expression that I think made his last hours very special to him. He could see the love."

During the emotional, eight-hour clemency hearing Tuesday, Poland's brothers and sister told of the abuse he had suffered as a child and how he fell under the influence of Michael Poland, an "evil" brother who led him into a life of crime and murder. Poland's daughter, Stacey, told the panel that if she could start her life over and pick any father that God would give her, she would still choose Patrick Poland. Philip Poland, his brother, told the clemency board that if Patrick dies, it wouldn't be the state that killed him -- it would be his other brother, Michael.

Victims' families wanted justice McDonald, a former U.S. attorney in Arizona, told the panel that Patrick Poland had shown remorse and admitted his crimes. He said that "justice had been done" in the execution of Michael Poland, but now it was time to show mercy to Patrick.

But the relatives of Cecil Newkirk and Russell Dempsey, the two guards murdered during the robbery, were not as forgiving and moved. Newkirk's widow sent a letter to the clemency panel stating that Patrick Poland had to pay with his life. Camilla Strongin, a Department of Corrections spokeswoman, said Poland spent his final hours with a Catholic priest, receiving last rites about 2 1/2 hours before his execution.

He requested no last meal, Strongin said. For breakfast he was served the routine prison fare of a cup of oatmeal, pancakes and sausage and a cup of coffee. Patrick Poland also did not want his family or children to witness his execution.

Prosecutor tried to save him The last ditch efforts to save Poland from the death house had taken a bizarre twist last week when it was revealed that McDonald -- the prosecutor who had won death sentences against the Poland brothers -- announced he was urging the clemency panel to spare Patrick Poland's life.

McDonald told APBnews.com that since prosecuting the Polands, he had come to believe that it was the evil influence of Michael Poland that led Patrick into a life of crime. McDonald said Michael Poland was the "evil" mastermind of the robbery of the armored car and murder of the guards.

McDonald did admit, however, that Patrick Poland took an active part in the killings. McDonald said that when twin brothers Patrick and Jeffery Poland left home as teenagers because of the abuse from their father, they each went to live with a different older brother. Jeffery lived with Philip Poland, who helped him become an architect. Patrick went to live with Michael Poland, who taught him about crime, McDonald said.

A change of heart Before the brothers were indicted and convicted for robbery and murder, they also teamed up on a bizarre kidnapping scheme in which the wives of bank managers were kidnapped and held for ransom. McDonald, who was designated as a special state prosecutor to bring murder charges against the Polands, said he had offered the brothers a life sentence in return for guilty pleas. "His brother didn't want him to do it," McDonald said. McDonald said he had no regrets about winning the death sentences against both Patrick and Michael Poland. "Back in 1982, it was the right thing to do," he said. Patrick Poland was the second condemned killer executed in Arizona this year.

 
 

Prosecutor Comes to Killer's Defense

He Put Him Behind Bars, Now He Wants to Save His Life,"

By Robert Anthony Phillips - APBNewsOnline

March 12, 2000

PHOENIX (APBnews.com) -- Convicted killer Patrick Poland is just days away from following in his big brother's footsteps -- a walk to the state's death chamber. But, in a strange twist, the prosecutor who put him on death row is now trying to save him.

Melvin McDonald, who 18 years ago convinced a jury to give death sentences to Patrick Poland and his brother Michael for murdering two guards during a $300,000 armored van heist, says he's making a last ditch effort to save the death row inmate from his Wednesday afternoon date with an executioner.

McDonald says he is convinced that Poland was abused as a child and placed in the hands of his "evil" brother, who continued to beat him and led him into a life of violence, kidnapping and murder. Michael Poland, who McDonald says was the mastermind of the bloody robbery, was executed last year.

'Evil brother' defense emerges

McDonald, a former U.S. attorney in Arizona, told APBnews.com that he will appear before the Arizona Board of Executive Clemency on Tuesday morning to urge the panel to recommend that Poland, now 49, be given a two life sentences without parole. "The evil architect of the crime was executed, and the brother facing execution next week has some redeeming value to him," McDonald told APBnews.com. "This is the product of an evil brother." But it's unclear whether the clemency panel or Gov. Jane Dee Hull will accept the abused childhood and "evil brother" defense and commute Poland's sentence.

A spokesman for Arizona Attorney General Janet Napolitano said she was aware of the about-face by McDonald and found it "interesting." She said the attorney general's office would be represented at Tuesday's clemency hearing.

Posed as lawmen to trick guards

McDonald even admits that there is "no doubt" that the brothers beat and strangled the guards. He said that Poland admitted to him in a prison meeting that he took part in at least one of the murders. The Polands posed as lawmen to stop the armored car, then killed the guards and tossed their bodies into Lake Mead.

Michael Poland, 59, was executed by lethal injection June 16, 1999. If Poland is executed, it will mark the second time in about a year that Arizona has executed brothers. Karl and Walter LeGrand were put to death in 1999.

A plea to the governor

McDonald said that he sent a letter to Hull asking for mercy for Poland and has already met with a member of her staff. The letter also was signed by an FBI agent who helped investigate the case. Besides McDonald, others scheduled to testify on Poland's behalf are his family members -- including his two children who were just 4 and 6 years old when their father was arrested for the murders.

The five-member clemency board must hear the plea for mercy and then make a recommendation to the governor. Hull may choose to ignore the panel's decision, state officials said. But a staff member with the clemency panel said it is not unusual for prosecutors to change their minds and urge mercy. He also recalled that, in one case, a judge who sentenced a man to death spoke on another condemned man's behalf. McDonald said that he has already contacted a guard's widow and informed her of his decision. He refused to say what her reaction was.

Federal prosecutor wins state charges

Because bank robbery is a federal crime, and murder a state crime, McDonald, then the top federal prosecutor in Arizona, first won bank robbery and kidnapping convictions against the Polands in 1979. The brothers were each sentenced to 100 years in a federal prison. The Polands were then tried on state capital murder charges in Yavapai County, convicted and sentenced to death in 1980.

However, McDonald said the verdicts were overturned on appeal. McDonald said that when he later learned that the Yavapai County prosecutor was not going to try the Polands again for murder, he became incensed and pushed to prosecute the brothers in state court himself. McDonald said he received special permission from his boss, then-Attorney General William French Smith, to prosecute the brothers on murder charges. He won guilty verdicts and watched as the judge sentenced them to death. "I was a warrior," McDonald said.

Documented evidence of abuse?

McDonald, who's now in private practice, said that since prosecuting the Polands, he continued the investigation and met with family members, and now believes that Poland was an abused child, beaten by his father, who ran away from home and ended up with Michael Poland, who continued to abuse him. Thomas Gorman, Poland's lawyer, said that the only reason his client participated in murdering one of the guards was that he was afraid that his brother would kill him if he didn't.

He says Poland was under "duress" and had to kill to save his own life. "Michael Poland was a sociopathic killer who would kill members of his family, and Patrick believed that [he and his brother] were only going to rob, not kill the guards," Gorman stated. Gorman said that before running away from home and living with his brother, Poland was beaten and abused by his father, who has since died. Poland's mother refused to provide any information about her sons. "I won't talk about them," Arlene Poland said. "They told me not to talk."

Other brothers became architects

McDonald told APBnews.com that Poland has a twin brother, Jeff. He said that, when both Jeff and Patrick Poland ran away from home to escape their abusive father, one lived with a "good" brother and the other with the "evil" brother. Jeff Poland went to live with his brother Phil, an architect, and later became an architect himself, McDonald said.

Patrick, however, went to live with Michael and assumed a life of crime. McDonald described Michael Poland as a "brilliant" criminal. In one case, Michael Poland kidnapped a bank manager's wife and devised a unique way to grab the ransom money right under the FBI's nose. "In one [kidnapping], he rented a building and dug an underground tunnel to a Dumpster in which he had installed a trap door," McDonald said. "He told them to drop the money in the Dumpster. They did and as the FBI watched for him, he crawled through the tunnel, into the Dumpster and took the money without them seeing him."

Killer: guard had heart attack

The brothers pulled the $300,000 robbery May 24, 1977. Prosecutors say the Polands disguised themselves as lawmen -- complete with uniforms, badges and a car outfitted with a flashing siren -- and pulled over the armored car on Interstate 17 near Bumblebee.

The two guards, Russell Dempsey and Cecil Newkirk, were on their way to make several bank stops. The van was carrying $288,000, prosecutors said. Lawmen said that the Polands took the money, beat and strangled the guards, stuffed their bodies into canvas bags and dumped them on the Arizona side of Lake Mead.

Michael Poland would later tell Department of Corrections investigators that during the robbery, one of the guards had a heart attack and died. He said that he knew he would be charged with felony murder because of the guard's death and had no alternative other than to kill the second guard. "Poland said he knows everyone thinks he is just a killer," said an internal Department of Corrections document. "But he was forced into killing the second guard after the first had died."

Bodies float to surface Police and the FBI were at first stumped by the robbery and the whereabouts of the guards. McDonald said there was even a belief that the guards were kidnapped, kept for a few days and later killed.

Investigators were looking for possible accomplices to the crime. Then, by early summer of 1977, the decomposed bodies floated to the surface of the lake and were recovered.

Police divers also found two revolvers and a bent license plate on the bottom of a cove. Meanwhile, following the robbery and murders, the FBI said that the Polands went on a spending spree, repaying loans and making purchases totaling $100,000.

A search of Michael Poland's house turned up over $13,000 in cash, a stun gun receipt and a police-type gun belt. A search of his bother's home turned up $15,000 in cash and a wallet with a law enforcement-type badge.

Witnesses testified that they saw the Polands at the scene near the van. Canvas bags used for the bodies and other physical evidence were traced to items purchased by Poland, who used the fake name of Mark Harris. The money recovered from the two homes and the law enforcement equipment helped land a conviction and death sentence for the pair.

Involved in escape plot

Arizona Department of Corrections records show that, in 1997, Michael Poland tried to arrange a bizarre and elaborate escape plot by offering a prison guard a $2 million bribe to allow him to flee while en route to a local hospital for medical treatment.

He told the guard the money was hidden from the armored car robbery. When corrections investigators got wind of the scheme, they searched Michael Poland's cell and found handwritten notes and a detailed map of the hospital. When interviewed by corrections investigators, Michael Poland told them he liked to plan escapes because "it was just something fun to do." Corrections investigators said that over the years, the Polands did not to appear to interact much while on death row.

Condemned interested in law career

A mandatory probation report made after Poland was sentenced to death has no mention of childhood abuse. According to the report, Poland, then 32, said he was one of four brothers and a sister from a "law-abiding family." He told the probation officer that he had a twin brother, Jeff, and that two siblings were architects.

He also said that he was raised Methodist and that his grandfather was a minister. Poland also revealed that he dropped out of high school but later earned a GED certificate in 1969. He said that he had an interest in law enforcement; he had applied and was rejected by the Phoenix Police Department on four occasions.

At the time of his arrest, Poland stated that he and Michael owned and managed a game room in Prescott. He also was involved in gun sales and claims to have once tried his hand at being a private detective. Poland told the probation officer that he had held a variety of low paying jobs, including working as a cook, painter, carpenter, tour guide and computer technician.

 
 

Death Row Killers Have Brotherly Bond

Dozens of Siblings Face Execution Together

By Robert Anthony Phillips - APBNews Online

March 12, 2000

PHOENIX (APBnews.com) -- They grew up together, played together and murdered together. On occasion, they were sentenced to death together. While it is rare that brothers end up on death row, it does happen. Texas alone has executed brothers on six occasions, dating back to 1925. South Carolina put to death stepbrothers on the same day in 1998.

If Patrick Poland, 49, follows his brother Michael to the death chamber here Wednesday, there will still be two sets of brothers awaiting execution in Arizona. Rudi and Michael Apelt were sentenced to death for the murder of Michael Apelt's wife in 1988. Prosecutors say the brothers killed her to collect $400,000 in life insurance.

Bank branch manager killed

Also on Arizona's death row are Robert and Roger Murray. The Murrays were on their way back from Las Vegas when they decided to rob someone. They entered a home, shot two residents, burglarized the home and fled, prosecutors said. And just last year, the state executed Walter and Karl LaGrand for fatally stabbing a bank branch manager during an attempted robbery. Karl LaGrand was executed by lethal injection Feb. 3, 1999, and Walter LaGrand was gassed on March 3, 1999.

The Golphin brothers are on death row for shooting and killing a state highway patrol officer and a deputy sheriff in 1997. The brothers, wanted for a robbery in South Carolina and driving a stolen car, were stopped on Interstate 95. Prosecutors said that Tilmon Golphin, 20, shot one of lawmen with an assault rifle as he wrestled with his brother. And Kevin Golphin, 19, also grabbed a one of the officer's gun to shoot the second lawman.

Shot, stabbed employees

Anthony and Jeffrey Farina are the only brothers on Florida's death row. They were convicted and sentenced to death for killing a 17-year-old college student during a fast-food restaurant robbery in 1992. Prosecutors said that the Farinas tied up four employees and shot or stabbed each one. Three survived.

The brothers were convicted and sentenced to death in 1998. Anthony Farina is now 26 and Jeffrey Farina, 24. California brothers Christopher Self and Orlando Gene Romero were sentenced to death in 1996 for being involved in a carjacking, kidnapping and robbery spree that resulted in a murder. They were part of a gang that terrorized Riverside County, prosecutors said.

Wait lasted 21 years Half-brothers Larry Gilbert and J.D. Gleaton were executed on the same day in South Carolina -- Dec. 4, 1998. Gilbert, 43, and Gleaton, 53, had been convicted of the 1977 robbery and murder of a gas station owner. They were on death row for about 21 years.

In Texas, Jose and Jessie Gutierrez were executed for the murder of a jewelry store clerk during a robbery Sept. 5, 1989. Jessie Gutierrez, 29, was the first brother to die. He was executed by lethal injection in Texas in September 1994. Jose Gutierrez, 39, was executed in November 1999.

  


 

In the Supreme Court of the United States

476 U.S. 147

106 S.Ct. 1749
90 L.Ed.2d 123

Patrick Gene POLAND, Petitioner,
v.
ARIZONA.

Michael Kent POLAND, Petitioner,
v.
ARIZONA.

Nos. 85-5023, 85-5024.

Argued Feb. 24, 1986.
Decided May 5, 1986.

Syllabus

Petitioners robbed a bank van of $281,000 in cash and killed the guards by dumping them into a lake in sacks weighted with rocks. Petitioners were convicted of first-degree murder in an Arizona state court. At a separate hearing, while finding that the statutory aggravating circumstance that the offense was committed for "pecuniary gain" was not present because it applied only to contract killings, the trial judge sentenced petitioners to death upon finding that the statutory aggravating circumstance that the offense was committed in "an especially heinous, cruel, or depraved manner" was present. The Arizona Supreme Court, while reversing and remanding for a retrial on other grounds, held that the evidence was insufficient to support a finding of the "especially heinous" circumstance, but that the trial judge erred in finding the "pecuniary gain" circumstance limited to contract killings, and that if petitioners were again convicted the judge might find this circumstance present. On remand, petitioners were again convicted of first-degree murder and the trial judge again sentenced them to death, finding that both the "pecuniary gain" and "especially heinous" circumstances were present. The Arizona Supreme Court affirmed, rejecting petitioners' argument that the Double Jeopardy Clause barred reimposition of the death penalty. The court found the evidence still insufficient to support the "especially heinous" circumstance but sufficient to support the "pecuniary gain" circumstance.

Held: Reimposing the death penalty on petitioners did not violate the Double Jeopardy Clause. Pp. 152-157.

(a) When a conviction is reversed on appeal, it is nullified and " 'the slate wiped clean,' " so that if the defendant is convicted again, he may constitutionally be subjected to whatever punishment is lawful. Bullington v. Missouri, 451 U.S. 430, 442, 101 S.Ct. 1852, 1860, 68 L.Ed.2d 270. This rationale is, however, inapplicable where a jury agrees or an appellate court decides that the prosecution "has not proved its case." Id., at 443, 101 S.Ct., at 1860. Therefore, the relevant inquiry in these cases is whether the sentencing judge or the reviewing court has "decided that the prosecution has not proved its case" for the death penalty and hence has "acquitted" petitioners. Bullington v. Missouri, supra; Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164. Pp. 152-154.

(b) The trial judge's rejection of the "pecuniary gain" aggravating circumstance was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Moreover, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. Pp. 154-157.

144 Ariz. 388, 698 P.2d 183, and 144 Ariz. 412, 698 P.2d 207 (1985), affirmed.

WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. ---.

W.K. Wilhelmsen, for petitioner in each case.

Gerald R. Grant, Phoenix, Ariz., for respondent in each case.

Justice WHITE delivered the opinion of the Court.

The question presented is whether the Double Jeopardy Clause bars a further capital sentencing proceeding when, on appeal from a sentence of death, the reviewing court finds the evidence insufficient to support the only aggravating factor on which the sentencing judge relied, but does not find the evidence insufficient to support the death penalty.

* In 1977 petitioners Patrick and Michael Poland, disguised as police officers, stopped a Purolator van that was making cash deliveries to various banks in northern Arizona. After removing some $281,000 in cash from the van, petitioners took the two Purolator guards to a lake and dumped them into the water in sacks weighted with rocks. Autopsies indicated that the most probable cause of the guards' death was drowning, although one may have died of a heart attack. It was not possible to determine if the guards were drugged, but there was no evidence of a struggle.

The jury disbelieved petitioners' alibi defense and convicted them of first-degree murder. Pursuant to former Ariz.Rev.Stat.Ann. § 13-454(A) (Supp.1973), the trial judge then sat as sentencer in a separate proceeding. At the hearing, the prosecution, relying on the evidence presented at trial, argued that two statutory aggravating circumstances were present: (1) that petitioners had "committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value," former Ariz.Rev.Stat.Ann. § 13-454(E)(5) (Supp.1973); and (2) that petitioners had "committed the offense in an especially heinous, cruel, or depraved manner," former Ariz.Rev.Stat. § 13-454(E)(6) (Supp.1973). The trial judge made the following finding with respect to the "pecuniary gain" aggravating circumstance:

"The court finds the aggravating circumstance in § 13-454E(3) [sic] is not present. This presumes the legislative intent was to cover a contract killing. If this presumption is inaccurate, the evidence shows the defendants received something of pecuniary value, cash in the amount of $281,000.00.

"This, then, would be an aggravating circumstance." App. 15-16.

The judge found that the "especially heinous, cruel, [or] depraved" aggravating circumstance was present, stating that the murders were "shockingly evil, insensate, and marked by debasement." Id., at 16. Finding that this aggravating circumstance outweighed the mitigating evidence, the judge sentenced petitioners to death. Id., at 14.

On appeal, petitioners argued that the evidence was insufficient to support the judge's finding of the "especially heinous, cruel, or depraved" aggravating circumstance. They also argued that the jury's verdict was tainted by a jury-room discussion of evidence not admitted at trial. The Arizona Supreme Court agreed that the jury's verdict was tainted, necessitating reversal and retrial. State v. Poland, 132 Ariz. 269, 283-285, 645 P.2d 784, 798-800 (1982).

The court next held that the evidence on which the State relied at the first sentencing hearing was insufficient to support a finding of the "especially heinous, cruel, or depraved" aggravating circumstance. Id., at 285, 645 P.2d, at 800. Finally, the court stated that the trial court "mistook the law when it did not find that the defendants 'committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.' " Ibid.

The court explained that this aggravating circumstance is not limited to situations involving contract killings, see State v. Clark, 126 Ariz. 428, 616 P.2d 888 (1980), and added that "[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance." 132 Ariz., at 286, 645 P.2d, at 801.

On remand, petitioners were again convicted of first-degree murder. At the sentencing hearing, the prosecution, relying on the evidence presented at the second trial and also presenting additional evidence, argued that the "pecuniary gain" and "especially heinous, cruel, or depraved" aggravating factors were present in each petitioner's case. The prosecution alleged a third aggravating circumstance in petitioner Patrick Poland's case: previous conviction of "a felony . . . involving the use or threat of violence on another person," Ariz.Rev.Stat.Ann. § 13-454(E)(2) (Supp.1973).1 The trial judge found all of the aggravating circumstances alleged by the prosecution, and again sentenced both petitioners to death.

Petitioners argued on appeal, as they had at their second sentencing hearing, that the Double Jeopardy Clause barred reimposition of the death penalty. Their theory was that the Arizona Supreme Court's decision on their first appeal that the evidence failed to support the "especially heinous, cruel, or depraved" aggravating circumstance amounted to an "acquittal" of the death penalty. Cf. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). A majority of the Arizona Supreme Court rejected this argument, stating:

"Our holding in Poland I . . . was simply that the death penalty could not be based solely upon [the 'especially heinous, cruel, or depraved'] aggravating circumstance because there was insufficient evidence to support it. This holding was not tantamount to a death penalty 'acquittal.' " State v. Poland (Patrick), 144 Ariz. 388, 404, 698 P.2d 183, 199 (1985). Accord, State v. Poland (Michael), 144 Ariz. 412, 698 P.2d 207 (1985).

The court found the evidence still insufficient to support the "especially heinous, cruel, or depraved" aggravating circumstance, but sufficient to support the "pecuniary gain" aggravating circumstance with respect to both defendants and the "prior conviction involving violence" circumstance with respect to Patrick Poland. State v. Poland (Patrick), supra, at 404-406, 698 P.2d, at 199-201; accord, State v. Poland (Michael), supra.

After again reviewing and independently weighing the mitigating and aggravating circumstances, the court concluded that the death penalty was appropriate in each petitioner's case. We granted certiorari to consider whether reimposing the death penalties on petitioners violated the Double Jeopardy Clause. 474 U.S. 816, 106 S.Ct. 60, 88 L.Ed.2d 49 (1985). We hold that it did not.

II

In Bullington v. Missouri, supra, this Court held that a defendant sentenced to life imprisonment by a capital sentencing jury is protected by the Double Jeopardy Clause against imposition of the death penalty in the event that he obtains reversal of his conviction and is retried and reconvicted. The Court recognized the usual rule to be that when a defendant obtains reversal of his conviction on appeal,

"the original conviction has been nullified and 'the slate wiped clean.' Therefore, if the defendant is convicted again, he constitutionally may be subjected to whatever punishment is lawful, subject only to the limitation that he receive credit for time served." Id., 451 U.S., at 442, 101 S.Ct., at 1860 (quoting North Carolina v. Pearce, 395 U.S. 711, 721, 89 S.Ct. 2072, 2078, 23 L.Ed. 656 (1969)).

However, the Court found that its prior decisions had created an exception to this rule: "[T]he 'clean slate' rationale . . . is inapplicable whenever a jury agrees or an appellate court decides that the prosecution has not proved its case." Bullington, 451 U.S., at 443, 101 S.Ct., at 1860.2

Although it is usually "impossible to conclude that a sentence less than the statutory maximum 'constitute[s] a decision to the effect that the government has failed to prove its case,' " ibid. (quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)), the Court found that Missouri, by "enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence, . . . explicitly requires the jury to determine whether the prosecution has 'proved its case,' " id., at 444, 101 S.Ct., at 1861 (emphasis in original).3

Accordingly, the Court held that the jury's decision to sentence Bullington to life imprisonment after his first conviction should be treated as an "acquittal" of the death penalty under the Double Jeopardy Clause.

Recently, the Court held that the rationale of Bullington applies to the Arizona capital sentencing scheme at issue in this case. Arizona v. Rumsey, supra.4 In Rumsey, the trial judge erred in exactly the same way as the trial judge did at petitioners' first sentencing hearing in these cases, by construing the "pecuniary gain" aggravating circumstance as limited to "murder for hire" situations. Unlike the trial judge in this case, however, the trial judge in Rumsey found no aggravating circumstances, and entered a sentence of life imprisonment. This Court held that "[t]he double jeopardy principle relevant to [Rumsey's] case is the same as that invoked in Bullington: an acquittal on the merits by the sole decisionmaker in the proceeding is final and bars retrial on the same charge." Id., at 211, 104 S.Ct., at 2310.

Under Bullington and Rumsey, therefore, the relevant inquiry in the cases before us is whether the sentencing judge or the reviewing court has "decid[ed] that the prosecution has not proved its case" for the death penalty and hence has "acquitted" petitioners. Bullington, 451 U.S., at 443, 101 S.Ct., at 1860.

III

At no point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case" that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the "especially heinous, cruel, or depraved" aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty.

Indeed, the court clearly indicated that there had been no such failure by remarking that "the trial court mistook the law when it did not find that the defendants 'committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value,' " and that "[u]pon retrial, if the defendants are again convicted of first degree murder, the court may find the existence of this aggravating circumstance," 132 Ariz., at 286, 645 P.2d, at 801.

Petitioners argue, however, that the Arizona Supreme Court "acquitted" them of the death penalty by finding the "evidence [insufficient] to support the sole aggravating circumstances found by the sentencer." Brief for Petitioners 16. Petitioners' implicit argument is, first, that the sentencing judge "acquitted" them of the "pecuniary gain" aggravating circumstance, and second, that the Double Jeopardy Clause rendered this "acquittal" final, so that the evidence relating to this circumstance was effectively removed from the case at the time of petitioners' first appeal.5

We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate.6

We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of minitrials on the existence of each aggravating circumstance. Such an approach would push the analogy on which Bullington is based past the breaking point.

Aggravating circumstances are not separate penalties or offenses, but are "standards to guide the making of [the] choice" between the alternative verdicts of death and life imprisonment. 451 U.S., at 438, 101 S.Ct., at 1858. Thus, under Arizona's capital sentencing scheme, the judge's finding of any particular aggravating circumstance does not of itself "convict" a defendant (i.e., require the death penalty), and the failure to find any particular aggravating circumstance does not "acquit" a defendant (i.e., preclude the death penalty).

It is true that the sentencer must find some aggravating circumstance before the death penalty may be imposed, and that the sentencer's finding, albeit erroneous, that no aggravating circumstance is present is an "acquittal" barring a second death sentence proceeding. Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). This is because

"the law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that 'even though innocent he may be found guilty.' " United States v. Scott, 437 U.S. 82, 91, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978) (quoting Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957)).

This concern with protecting the finality of acquittals is not implicated when, as in these cases, a defendant is sentenced to death, i.e., "convicted." There is no cause to shield such a defendant from further litigation; further litigation is the only hope he has. The defendant may argue on appeal that the evidence presented at his sentencing hearing was as a matter of law insufficient to support the aggravating circumstances on which his death sentence was based, but the Double Jeopardy Clause does not require the reviewing court, if it sustains that claim, to ignore evidence in the record supporting another aggravating circumstance which the sentencer has erroneously rejected.

Such a rule would have the odd and unacceptable result of requiring a reviewing court to enter a death penalty "acquittal" even though that court is of the view that the State has "proved its case." Our decisions in Burks and Bullington do not support such a rule, which would certainly give the prosecution cause to "complain of prejudice." Burks, 437 U.S., at 16, 98 S.Ct., at 2149.

We hold, therefore, that the trial judge's rejection of the "pecuniary gain" aggravating circumstance in this case was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied.

The judgment of the Supreme Court of Arizona is

Affirmed.

*****

Justice MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, dissenting.

There is one difference between these cases and Arizona v. Rumsey, 467 U.S. 203, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), in which seven Members of this Court interpreted the Double Jeopardy Clause to bar imposition of a death sentence after a life sentence has been reversed on appeal: the sentencing judge in petitioners' cases made two errors of state law, while Rumsey's judge made only one. According to the majority, that makes the difference between life and death.

In Rumsey, the defendant was convicted of murder and robbery; the trial judge sentenced him to life imprisonment upon finding that none of the statutory aggravating circumstances provided by Arizona law applied to the defendant's case. One of those aggravating circumstances—murder committed as consideration for pecuniary gain—the court rejected in the belief that it applied only to murders for hire.

On appeal, the Supreme Court of Arizona held that murder for pecuniary gain could also include murder in the course of a robbery. Accordingly, it set aside Rumsey's life sentence and remanded for resentencing. This time, Rumsey was given a death sentence, supported by the aggravating circumstance of murder for pecuniary gain. On writ of certiorari, this Court concluded that the Arizona death-sentencing procedure is equivalent to a trial for purposes of the Double Jeopardy Clause, under the doctrine of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

We then concluded that Rumsey's initial life sentence had constituted an "acquittal" on the merits of the central issue of the proceeding: whether death was the appropriate punishment for the offense. Under traditional double jeopardy principles, retrial of that issue was thereafter precluded, even though the "acquittal" was predicated upon a mistaken interpretation of state law. Rumsey, supra, 467 U.S., at 211, 104 S.Ct., at 2310.

Petitioners, Patrick and Michael Poland, were convicted of the murders of two guards in the course of a robbery. Like the trial court in Rumsey, the sentencing court rejected the aggravating circumstance of murder for pecuniary gain, believing that it applied only to murders for hire. Unlike the Rumsey court, however, the trial judge did not then impose a life sentence. Instead, he concluded that another of the statutory aggravating circumstances was present: that the murders were "especially heinous, cruel, or depraved."

Based on this sole aggravating circumstance, therefore, the court sentenced petitioners to death. On joint appeal, the Arizona Supreme Court reviewed the death sentences and concluded that the evidence was insufficient as a matter of state law to establish that the murders had been "especially heinous, cruel, or depraved," because the State had not proved that the victims had suffered, as state law requires. App. 61.

Before remanding, however, the court took the opportunity, sua sponte, to note that murder for pecuniary gain was not limited to murders for hire, and therefore was available as a possible alternative basis for a death sentence. On remand, the trial court once more sentenced petitioners to death, again concluding that the murders were "especially heinous, cruel, or depraved," and also that they were committed for pecuniary gain.* The Arizona Supreme Court again reversed the aggravating circumstance of "especially heinous, cruel, or depraved," but this time upheld the death sentences on the ground of pecuniary gain.

The Court makes much of the fact that, unlike Rumsey, petitioners never received sentences of life imprisonment. Yet the majority fails to recognize the teaching of Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Burks, we held that an appellate reversal of a conviction, based on the legal conclusion that the evidence was insufficient to support the verdict, has the same effect under the Double Jeopardy Clause as an acquittal at trial. Id., at 16, 98 S.Ct., at 2150. "To hold otherwise," the Court concluded, "would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court." Id., at 11, 98 S.Ct., at 2147.

That arbitrary distinction is precisely the one that the Court creates today. The initial death sentences that petitioners received were "convictions," see Rumsey, supra, and their reversal for insufficiency of the evidence to support the sole aggravating circumstance found by the sentencing judge must, under Burks, be accorded the same effect as an "acquittal" at trial—the same effect as Rumsey's life sentence. As much as Rumsey's life sentence constituted the all-important "acquittal on the merits," even though predicated on an error of law, so, too, did the reversal of petitioners' death sentences.

The analogy, first drawn in Bullington v. Missouri, supra, between an acquittal at trial and an "acquittal" of death at sentencing, is not perfect, and the imperfections perhaps can explain the majority's mischaracterization of the issue in these cases. At trial, a defendant is charged with an offense containing certain specified elements; he is either convicted or acquitted of that offense, the trier of fact having concluded that the prosecution has or has not proved all the elements of the offense.

The sentencing proceeding, however, is quite different. In Arizona, for example, a death sentence may be imposed if any one of seven statutory aggravating factors is proved. While it might be possible to treat each aggravating circumstance as a separate "offense," of which a defendant is either convicted or acquitted, this Court has taken a different approach. We have said that "on the merits" of a capital proceeding, the "central issue [is] whether death was the appropriate punishment for [the] offense." Rumsey, 467 U.S., at 211, 104 S.Ct., at 2310. Thus, the "offense" for which the defendant receives his "conviction" or "acquittal" is that of the appropriateness of the death penalty, not the elements of any particular aggravating factor. Ante, at 153, n. 3.

In these cases, the trial judge found death to be the appropriate punishment because petitioners' offenses were "especially heinous, cruel, or depraved." On appeal, the Arizona Supreme Court held that the sole basis offered by the trial court to support its "conviction" of petitioners was insufficient as a matter of law.

The majority believes that, since other aggravating circumstances might have been found to support the "convictions," it was permissible to remand the cases for further factfinding on those alternative factors. But this overlooks what our cases have said a conviction is in the sentencing context—a determination that death is the appropriate penalty, not separate trials on the existence of all statutory aggravating circumstances, conducted seriatim.

In these cases, that determination was reversed because there was insufficient evidence to support the ground relied on by the trial judge in reaching it. Any remand for further factfinding on the question whether the death sentence should be imposed was thereafter prohibited. See Rumsey, supra, at 211-212, 104 S.Ct., at 2310-2311. In no other circumstance would the Double Jeopardy Clause countenance the offer of a second chance to the State and the trial judge to find a better theory upon which to base a conviction. Nor should it do so here. I dissent.

*****

1

On October 5, 1981, petitioner Patrick Poland, in an unrelated case, was convicted of bank robbery and use of a dangerous weapon in a bank robbery.

2

Thus, a defendant charged with first-degree murder but only convicted of the lesser included offense of second-degree murder has been acquitted of the greater charge for purposes of the Double Jeopardy Clause. In the event his conviction is reversed on appeal, "a retrial on the first-degree murder charge [is] barred by the Double Jeopardy Clause, because the defendant 'was forced to run the gantlet once on that charge and the jury refused to convict him.' " Bullington, 451 U.S., at 443, 101 S.Ct., at 1860 (quoting Green v. United States, 355 U.S. 184, 190, 78 S.Ct. 221, 225, 2 L.Ed.2d 199 (1957)).

Also, when a defendant's conviction is overturned on appeal on the grounds that the evidence was insufficient to convict, the Double Jeopardy Clause forbids a retrial. " 'Since we necessarily accord absolute finality to a jury's verdict of acquittal—no matter how erroneous its decision—it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.' " Bullington, supra, 451 U.S., at 442-443, 101 S.Ct., at 1859-1860 (quoting Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978)).

3

The "case" to which the Court referred in Bullington was the prosecution's case that the defendant deserved the death penalty. The analogy drawn was between a death sentence and a verdict of guilty, a life sentence and a verdict of innocent. The Court emphasized that the sentencer was required to make a choice between "two alternative verdicts," 451 U.S., at 438, 101 S.Ct., at 1858, a statement inconsistent with the view that for double jeopardy purposes the capital sentencer should be seen as rendering a series of mini-verdicts on each aggravating circumstance. See also Arizona v. Rumsey, 467 U.S. 203, 209-210, 104 S.Ct. 2305, 2309-2310 (1984) ("The sentencer—the trial judge in Arizona—is required to choose between two options: death, and life imprisonment without possibility of parole for 25 years").

4

The Court explained the similarities between the Arizona and Missouri systems as follows:

"The capital sentencing proceeding in Arizona shares the characteristics of the Missouri proceeding that make it resemble a trial for purposes of the Double Jeopardy Clause. The sentencer the trial judge in Arizona—is required to choose between two options: death, and life imprisonment without possibility of parole for 25 years. The sentencer must make the decision guided by detailed statutory standards defining aggravating and mitigating circumstances; in particular, death may not be imposed unless at least one aggravating circumstance is found, whereas death must be imposed if there is one aggravating circumstance and no mitigating circumstance sufficiently substantial to call for leniency. The sentencer must make findings with respect to each of the statutory aggravating and mitigating circumstances, and the sentencing hearing involves the submission of evidence and the presentation of argument. The usual rules of evidence govern the admission of evidence of aggravating circumstances, and the State must prove the existence of aggravating circumstances beyond a reasonable doubt. . . . [T]hese characteristics make the Arizona capital sentencing proceeding indistinguishable for double jeopardy purposes from the capital sentencing proceeding in Missouri." Ibid. (citations omitted).

5

Petitioners have not made this argument with any clarity, but we can discern no other plausible basis for their contention that the Arizona Supreme Court "acquitted" them of the death penalty at the time of their first appeal. Any suggestion that the court intended to acquit them is negated by the language in Poland I and is rendered even more untenable by the court's statement at the time of the second appeal that "[o]ur holding in Poland I, however, was . . . not tantamount to a death penalty 'acquittal.' " State v. Poland, 144 Ariz., at 404, 698 P.2d, at 199.

Petitioners seem to attach importance to the fact that the prosecution did not cross-appeal the trial judge's finding regarding the "pecuniary gain" aggravating circumstance. However, the Arizona Supreme Court did not accord any significance to the prosecution's failure to cross-appeal, and we certainly cannot say that as a matter of state law the court was precluded from considering the evidence regarding the "pecuniary gain" aggravating circumstance.

6

See n. 3, supra.

*

With respect to petitioner Patrick Poland, an additional aggravating factor was invoked to support the second death sentence, based on events subsequent to the first penalty proceeding.

 
 

U.S. 9th Circuit Court of Appeals

No. 97-99004

PATRICK POLAND, Petitioner-Appellant,
v.
TERRY L. STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.

Argued and Submitted April 22, 1998

Before: Procter Hug, Jr., Chief Judge, James R. Browning and Thomas G. Nelson, Circuit Judges.

OPINION

T.G. NELSON, Circuit Judge:

Arizona death row inmate Patrick G. Poland appeals the district court's denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. S 2254.

I

FACTS AND PROCEDURAL HISTORY

In 1980, Patrick Poland ("Patrick" or "Poland") and his brother, Michael Poland ("Michael"), were convicted in Arizona state court of two 1977 murders and sentenced to death. The convictions arose from the May 1977 hijacking and robbery of an armored car during which the two armored car guards, Russell Dempsey and Cecil Newkirk, were murdered.1

The convictions were overturned by the Arizona Supreme Court on the basis of jury misconduct. State v. Poland, 645 P.2d 784 (Ariz. 1982) (in banc) (Poland I). When the case returned to the Arizona Superior Court ("trial court") following the reversal in Poland I, the newly elected county prosecuting attorney moved to dismiss the charges on the basis that there was insufficient evidence on which to proceed to trial. The trial court denied the motion and a subsequent motion for reconsideration.

Following denial of the motions, counsel for the Polands moved to disqualify the trial judge for bias. The motion was referred to another judge of the Arizona Superior Court, who found no bias and denied the motion.

The Polands were again convicted and sentenced to death. The convictions and sentences were upheld on appeal by the Arizona Supreme Court, State v. Patrick Poland, 698 P.2d 183 (Ariz. 1985) (in banc), and State v. Michael Poland, 698 P.2d 207 (Ariz. 1985) (in banc), and by the Supreme Court of the United States on certiorari, Poland v. Arizona, 476 U.S. 147 (1986).

Poland's first post-conviction relief ("PCR") petition was denied by the trial court, and the Arizona Supreme Court denied review without comment. Poland then filed a petition for a writ of habeas corpus in federal district court. While that was pending, he filed a second PCR petition in the trial court.

The trial court held that a number of claims were precluded under the applicable state rules governing PCR proceedings. The claims in the second PCR petition became the basis of the amended habeas petition which the district court denied. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. S 1291 and S 2253, and we affirm.

*****

CONCLUSION

The district court's denial of Patrick Poland's petition for writ of habeas corpus is AFFIRMED.

 

 

 
 
 
 
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