¶1concurring in part; dissenting in part.
¶2I concur in the portion of the opinion affirming the conviction. My views on the use of dual juries are contained in my concurrence to State v. Lambright, 138 Ariz. 63, 673 P.2d 1 (1983).
¶3I dissent from that portion of the opinion affirming defendant’s sentence to death. The trial court found that Smith was a participant in the killing. However, the record indicates and the majority acknowledges that it was Lambright who used the knife and it was Lambright who “finished off” the victim by hitting her over the head with a rock. Smith claims that his participation in the act of murder was only minor and that the killing was done by Lambright and Kathy Foreman.
¶4The trial court’s findings are contrary to Smith’s contentions. The trial court found beyond reasonable doubt that Smith, with premeditation, participated in the killing, that he helped to plan it, and that his participation in the actual act of murder “was MAJOR.” (Emphasis in original.) Ordinarily, if the trial judge’s findings are supported by the evidence we could affirm or, in a capital case where we are making an independent review, we could agree. I cannot agree in this case. On this record, the trial court’s findings are necessarily based upon the testimony of Kathy Foreman. Evidently the trial judge believed her testimony. He certainly had a better opportunity than I to determine the credibility. It may well be that she told the truth. However, her motives for lying are clear. By testifying that both Lambright and Smith planned and took a major part in the crime, she has seen to their conviction and to the imposition of the ultimate sentence. By doing this, she has earned immunity for herself, avoided the death penalty, and has not served even a day in jail.
¶5The trial judge and the members of this court are “disturbed” and “appalled” by the treatment afforded Ms. Foreman. I join them in this. I am also appalled, however, by the fact that in the face of the many mitigating circumstances detailed by the court, including his low I.Q., Smith has been sentenced to death on the uncorroborated testimony of a witness whose motive for lying is patent. If the testimony given by Kathy Foreman is true, then Smith merits the death penalty. If, however, Kathy Foreman did not tell the truth, Smith does not merit the death penalty. No member of the majority has ever seen Kathy Foreman, but each member of the majority recognizes her motive to lie and each member of the majority is appalled. In my view, no decision on life or death should be allowed to stand on so fragile a foundation. For this reason, I believe that the court should exercise its discretion in performing its duty of independent review by reducing Smith’s sentence to life without possibility of parole for 25 years.