State v. Valdez

judge must know how the we his or her conclusion. reached Upon Decision Award hold that the Findings Denying Reopening is so lack-

ing specificity that we cannot review it. ap- of.

Consequently, we vacate the court set the award.

peals’ decision and aside C.J.,

GORDON, and CAMERON

MOELLER, JJ., concur.

HOLOHAN, J., before the retired J., case; CORCORAN,

decision of this participate

did not the determination case. this 770 P.2d 313 Arizona, Appellee,

STATE VALDEZ, Escarsega Appellant.

Antonio

No. CR-87-0355-AP. Arizona,

Supreme Court of

En Banc.

Jan. Jr., Higgins, County L.

Harold Pima Pub- Defender, Weninger, lic and Charles L. Tucson, appellant. for FELDMAN, Vice Justice 1. Chief

I. FACTS Defendant, Valdez, appeals Antonio E. from a and verdict assault, dangerous offense parole committed while he was on for a prior felony conviction. A.R.S. (B). 13-1204(A)(2) and Defendant was § twenty-five years term of sentenced to a consecutively life to be served to a sen- imposed tence in another matter. A.R.S. 13-604.02(A). pur- jurisdiction We have § Const, 5(3) suant to Ariz. art. and A.R.S. 13-4031 and -4033. §§ II. ISSUES following questions must answer appeal: on sup- sufficient to Was evidence port the conviction?

2. Was the defendant’s to confron- tation violated? prosecutor

3. Did the make prejudicial closing argu- in comments ment?

4. Was defendant’s counsel ineffective?

III. FACTS 1987, Danny Butierrez held On March Inn going-away party at the Tucson for friend, long-time Griggs. Thomas his party Present at the besides Butierrez and Almli, girl Griggs were Jennifer Butierrez’ Corbin, friend; defendant, a friend and co- Atty. K. Gen. William Robert Butierrez; Davis, Ramsey, and William III and Diane M. Asst. worker J. Schafer Gen., Phoenix, during the eve- appellee. the victim. At some time Attys. opinion. opinion originally assigned the entire Vice Chief Jus- to and will rewrite 1. This purpose members of drafted Justice Cameron. All that no would be tice Feldman believed through agreed V of court with sections I the the be wasted served and considerable effort would opinion, in section VI. Instead, but none concurred rewriting opinion. he entire operat- with this court’s internal In accordance proposed adopted drafts of Justice Cameron’s reassigned ing procedures, the Chief Justice V, through sections VI and authored sections designating opinion, Feldman Vice Chief Justice misconduct, dealing prosecutorial VII majority speak of the court on sections for a counsel, opin- and the ineffective assistance situation, Often, VII. in such a VI and ion’s conclusion. reassigned person to whom the case has been ning everyone drinking placed after had been strument so that the victim is heavily, got the defendant and Davis into apprehension reasonable of imminent argument per- over what defendant physical injury. ceived as Davis’ advances towards Almli. 362, 367, Morgan, State v. 128 Ariz. 625 Butierrez, boyfriend, Neither Almli nor her 951, (Ct.App.1981), P.2d 956 vacated on this, was concerned about but the defen- grounds, other County In re Pima Juve- upon dant took it himself to confront Davis 5-78539-2, nile Action No. 143 Ariz. by demanding that Davis leave. When (1984); 693 P.2d 909 see also refused, grabbed Davis defendant him and Torres, 150, 153, 156 Ariz. 750 P.2d producing held a knife to his throat a small (focus (Ct.App.1988) 911 under A.R.S. cut on his neck. Davis then went out of weapon 13-1204 is “whether a deadly is § by the room followed defendant. The de- the immediate control of the crimi- fendant soon returned Griggs and cut on nal, it”). perception not on the victim’s of finger. gave his Defendant his knife to contends, however, Defendant that with- Butierrez, gave Griggs, who it to who out the testimony victim’s that he was threw it across the road. placed in apprehension im- “reasonable Meanwhile, Davis police. had called the physical injury,” minent may a conviction policemen The defendant ran when two ar- not be agree. obtained. We do not pursued rived. One officer the defendant apprehension When or fear are ele- spoke while the other Griggs. They offense, testimony ments of an of the retrieved knife which revealed no rec- victim actually that he was afraid or ognizable fingerprints. ap- Defendant was apprehensive required; is not that ele- prehended in the bathroom of one of the ment of the crime can be established hotel rooms. The officers described Davis circumstantial evidence. upset as and excited. Butierrez and Almli trial, testified impeached Angle, at and both State v. 149 Ariz. 720 P.2d prior (Ct.App.1985), with inconsistent part statements. Butier- vacated in on rez prior had made the grounds, statements to exon- other 720 P.2d 79 defendant, erate the and Almli had done so testifying

to avoid at trial. Almli ultimate- The circumstantial evidence herein is ly Griggs’ confirmed version of the alterca- more required than sufficient to show the tion. thought She testified that she defen- fact, fear. it would stretch our credibili- trying dant was to scare Davis. ty breaking point were we to find The defendant took the stand and testi- that a knife held to the throat followed fied on his own behalf. He claimed he a on produce cut the neck did not fear and grabbed only Davis him in after Davis hit apprehension part. on the victim’s We find eye. He pulling denied a knife on no error. Davis and denied injuring either or Davis Griggs. From a verdict and V. RIGHT TO CONFRONTATION guilt, appeals. affirm. trial, Davis, victim, testify. At did not

IV. INSUFFICIENCY OF objections, Over defendant’s the trial court THE EVIDENCE investigator testify allowed an that he Defendant first trying unsuccessfully contends that had been to serve prove state failed to subpoena essential for four months element of Davis with a offense, namely investigator the victim prior to trial. The asserted reasonably apprehensive phys present testify of imminent that Davis was not injury. ical trial he was unaware of the trial because date he had not been served because To be assault with a subpoena. deadly weapon, only intentionally following the defendant need act At trial the occurred before the using deadly weapon dangerous in- judge: or BY MR. LAURITZEN: Defendant first [for contends that State]

Well, question and the I think both failure present of us of the state to the victim want way answered a different violated the right defendant’s under the my whether or sixth putting amendment of the United McDonald on States Con asking stitution and article him what of the asking efforts or Arizona provisions guarantee Constitution. These him whether he made efforts to find criminal defendants the to confront opens Davis the door to the fact that one their Robinson, accusers. State v. primary ways that were used to Ariz. find Mr. following Davis was down the agree We do not with the defendant that leads by that were created his arrest the the present. victim had to be day after. I by mean As noted Supreme that it seems to me is the really Minnesota probative Court: anything of clearly preju- get

dicial now we to hear about an ar- The victim in this case left the state and rest. Alabama, returned to where he was from, shortly after he was released from THE COURT: Is Davis an absconder hospital, the and he could not be located from some case? witnesses, trial. two who MR. LAURITZEN: No. had never met either defendant or the MR. ACUNA: the He [for Defendant] victim day question, before the in both was arrested charges and then the gave testimony sufficiently which sup- pursued. never completely ported jury’s the finding that defendant MR. LAURITZEN: Case was never is- stabbed the victim with a screwdriver sued. Then the case was dismissed after and that the attack was not in self-de- filed, an interim complaint was I assume. fense. The state did any not.introduce I’m they got point not even sure to the hearsay statement of the victim nor was complaint. interim All I know is responsible it being for the victim’s un- there was an arrest and case was dis- available, and therefore no Sixth Amend- missed. ment issue is raised. There is no reason MR ACUNA: Mr. McDonald indicated testimony to believe that the victim’s prior in his testimony in this case he had would have been favorable to defendant gone through police reports and defendant’s contention that he was following arrests and checked the ad- prejudiced by the victim’s absence is not given dress and names on reports, by borne out our examination of the reports and officers and so forth. fact, attempt- record. defense counsel And testimony his probably would ed to use the victim’s absence to defen- clearly advantage closing show that he dant’s up argument. followed leads that resulted from the arrest Salazar, N.W.2d 754-55 following day. (Minn.1980); Rivet, see also State v. (Minn.1980).

And I think says, what Mr. Lauritzen N.W.2d well, I don’t want the fact known he was There no evidence that the state was day— arrested the next absence, responsible for the victim’s

THE COURT: What was he arrested that the the evidence indicates state made a for, forgot. good faith effort to find the victim. We find no sixth amendment violation of defen-

MR. LAURITZEN: Theft of a vehicle dant’s to confrontation. employer. from his If you recall the testimony, the employer led Mc- —that Next, the defendant claims that the employer employer Donald to the and the prohibiting court erred in defendant from press charges. why didn’t I think that’s showing that the victim had been arrested. thing was dismissed. agree. ap We do not Had the victim (RT), Reporter’s Transcript peared, impeached by Oct. he could have been a conviction, prior prior 80-81. but not arrest support his com- did not dence at trial Defendant in a dismissal. resulted which Second, they were irrelevant fact of the ments. brought not have could Third, and most being tried. any had the victim issue jury’s attention arrest rule, which forbids any differ- a court importantly, could not do present and been “re- “plea discussion” or find no absence. We evidence ently the victim’s the com- agreement,” prohibits sulting error. Ariz.R.Crim.P., 17.4(f), ments. Rule MISCONDUCT PROSECUTORIAL VI. A.R.S. that next contends Defendant prosecutor Thus, assuming that the even closing prosecutor was argued might properly have argument de During closing remarks. bargain this defendant plea with should not fense counsel stated: offense,2 any convicting him of a lesser testimony you compare And when unsuccess- this defendant intimation that given to instructions the law and with bargain from the state sought plea fully come you’ll I’m confident back you, Indeed, such a grossly improper. is still as to the of not at least a verdict only jury’s calls the attention comment not aggravated assault. matters, improper but to inadmissible easier concede a much danger prejudice I can almost also creates a serious of- finding the lesser-included task of jurors’ in the mind it tends to raise because assault, But as to the fense. acknowl- the defendant an inference that if Mr. might a little different it have been prejudicial for error edged guilt. The test here, Griggs here—Mr. Davis were probabili- reasonable “there was whether easier for might have been a whole lot affect- verdict'might have been ty that the But as it is prove the to their case. State Schossow, 145 error.” ed the State now, they’ve not done he’s not here and 504, 508, P.2d 452 Ariz. it. Here, meets that prosecutor’s comment the RT, test. Oct. response, prosecutor the stated: record shows that de address the almost con- I want to first prosecu object not to the fense counsel did almost made at cession that Mr. Acuna Ordinarily, the failure to tor’s remark. remarks. And that was the end of his Kreps, the error. State v. object waives you conceded that could that he almost the lesser-included offense. find here one the trial The error was you to suggest you to folks he wants easily at or near the have cured court could lesser-included offense because find the counsel argument, if defense time of final plea bargain. He wants you he to wants objection objection. An would made an plea bargain the you give to him the to de the trial court either required have wouldn’t, your job. not and that’s State instruct the that mistrial or to clare a added). (emphasis

Id. at 373 disregard the comment only should it not Thus, indicated prosecutor’s remarks unjustified by but that the comment sought had a that defendant to merely and was or the evidence the facts state, bargain bargain from the plea inadvertent, This remark. careless an lay person might A think refused. state indeed, “gilded lily,” but have might, only reason for a defendant protected defendant’s at least would have that defendant plea discussions was seek By objecting, trial. rights to a fair guilty or at least feared that he was knew require court to failed to therefore, and, sought weak case he had a view, and, has in our the error correct face trial. plea bargain rather than take Defendant cannot that error. waived verdict, reserv on a favorable imper- his chances comments were prosecutor’s The appeal on an a later First, ing the “hole card” of the evi- reasons. missible for three arguments. 17.4, plea bargains in final tion of endorse men- Rule we do not 2. Given evidentiary matter (1984)(double that was curable at tri- jeopardy required clause dis- al, and then appellate seek reversal from charges missal of knowing and inten- an unfavorable verdict. See M. UDALL & prosecutorial misconduct). tional LIVERMORE, J. ARIZONA PRACTICE: Although we authority have no direct THE LAW OF EVIDENCE 12 at 14-15 officers, over law enforcement except as to (2d 1982). ed. comportment actions, their courtroom An exception to principle the waiver ex- we do authority have direct over the con- ists the doctrine of fundamental error. lawyers, duct of both in and out of the Kreps, 146 Ariz. at 706 P.2d at 1217. courtroom. Accordingly, in cases where Fundamental error goes is error that to the there has been misconduct of either the heart of the defendant’s case or takes from prosecutor counsel, or defense but reversal him a essential to his defense. required, is not proper remedy will be v. King, Ariz. 763 E.2d affirmance, followed institution of bar (1988)(error defining the terms used disciplinary proceedings against the offend- in instructing the jury quantum on the ing lawyer, if proceedings such are war- proof necessary for a defendant to estab- ranted. lish insanity fundamental). defense is quite The error here is different than that VII. EFFECTIVE ASSISTANCE King found in pertains only because it OF COUNSEL evidentiary isolated matter raised in fi- argues Defendant that defense argument. nal The comment was counsel’s failure object prosecu not fundamental error. plea bargain tor’s comment in constituted express prohibitions Given the of effective assistance of counsel so that re 17.4(f), Rule let alone the lack of relevance required. versal is disagree. evidentiary support and prosecu for the Generally, this court is reluctant to de- comment, tor’s argues that this cide claims of ineffective assistance in ad- court should reverse defendant’s conviction of evidentiary hearing vance an to deter- on policy grounds prose as a deterrent to mine the reasons for counsel’s actions or cutorial Assuming, misconduct. without any particular point. Here, inactions on deciding, that the question comment in instance, possible it is that defense knowingly intentionally made, and might it prosecutor’s counsel was aware that the certainly professional have been miscon plea bargain improper comment was but 42, 3.4(c) See (e), 3.5(c), duct. Rule ER and any decided to take no action for one of (1988); Ariz.R.Sup.Ct., 17A A.R.S. former might several reasons. He have been sat- 29(a), 1-102(A)(5),7-106(C)(l) Rule DR and composition isfied with the of the or (7), Ariz.R.Sup.Ct., (1973); 17A A.R.S. progress the of the trial and therefore un- ABA, Standards For Criminal Justice— willing to move for a mistrial. Counsel Function, The Prosecution 3-5.8 and §§ may thought curing have that a instruction (and thereto). 5.9- commentary might highlight the comment and However, we prone are not to reverse cause the to think carefully about solely convictions because the officers of might few words that not have carried the law have gener- See improperly. acted impact given much the circumstances un- Bolt, ally State v. 260, 142 Ariz. 689 P.2d spoken. der which the words were These 519 Where there has been miscon- might compe- and other considerations lead error, harmless, duct but no or the error is tent defense counsel to the conclusion that object or when a defendant has failed to object it would be better not to error, proper a non-fundamental reme- prosecutor’s comment. dy generally is not reversal but affirmance by appropriate against

followed sanctions Defense counsel’s determinations of Bolt, offending strategy, actor. 142 Ariz. proven trial even if later unsuc 267-68, 526-27; cessful, but Pool v. 689 P.2d at are not ineffective assistance of cf. State, Santanna, 98, 109, 261, 139 Ariz. State v. 677 P.2d 272 counsel. 153 Ariz. (1987)(citing prosecutor’s professional 735 P.2d of Strick miscon- Washington, v. land U.S. duct. (1984)).

S.Ct. 80 L.Ed.2d 674 every object improp Nor is failure to GORDON, C.J., MOELLER, J., exhibit, question, argument worthy er or concur. being called ineffective assistance of coun Justice William A. Holohan retired before lawyer sel. Even the best trial makes case; the decision of this Justice Robert J. many every mistakes in trial. Defendants participate Corcoran did not in the determi- guaranteed counsel, perfect only are not nation of this case. Thus, competent counsel. the court can CAMERON, Justice, dissenting. determine ineffective assistance counsel regret I only issues after it that must dissent from the has learned of the rea portion opinion of the sons for counsel’s actions or the court con- inactions and tained in has examined the Section VI. Our rules state: record as a whole to determine whether the defendant received Confidentiality. Disclosure adversary what system requires. plea agreement When a or term Thus, here, cases, as in other if the defen accepted, agreement thereof is or dant wishes raise an ineffective assist part such term shall become issue, ance of counsel he ordinarily should agreement record. if no is begin someplace other than in this court. reached, revoked, agreement or if the See State Guerrero, court, rejected by or withdrawn or if 1014, 1015 is later vacated or re- versed, plea neither the discussion nor general matter, As a we recommend any resulting agreement, plea judg- or that when a defendant wishes to raise the ment, hearing nor statements made at a question during of ineffective assistance plea, against on the shall be admissible pendency appeal, of his he should file in any the defendant criminal or civil proper petition under Rule Ariz.R. proceeding. action or administrative Crim.P., A.R.S., in the trial court and 17.4(f), Ariz.R.Crim.P. 17 A.R.S. appellate seek an order from the court sus pending appeal. The trial court should determining whether remarks made then hold an evidentiary hearing and make by in objec- counsel criminal cases are so ruling. Afterward, its a defendant should case, tionable as to cause a of the reversal seek post-conviction pro to consolidate the we have stated the rule to be: ceedings with the appeal. direct Rule See Do the remarks call to the attention of 31.4, Ariz.R.Crim.P., 17 A.R.S. jurors they matters which would not justified considering in 13-4035, determining be Pursuant to A.R.S. we have verdict, they, their and were under the reviewed the record for fundamental error case, particular circumstances of the and find none. probably by influenced these remarks. VIII. CONCLUSION State, v. 47 Ariz. Sullivan (1936), quoted conclude that the evidence sufficient- P.2d approval ly supported verdict, Landrum, that defendant’s in State v. 112 Ariz. right violated, to confrontation and prosecutor’s was not 544 P.2d The by failing object, to clearly brought jury’s defendant waived remarks to atten- relating the error prosecutor’s proscribed by to the com- rule. The re- tion matters plea bargaining. ment on particularly egregious We affirm the marks because were prejudice considering aggra- without further verdicts post-conviction proceedings If simple assault. be- vated might institute. The clerk of court will lieved that the defendant had tried to make copy state, opinion plea bargain forward a of this to the disci- a with the this belief plinary department of the State Bar of could well have caused the scale to be allegation tipped opposed Arizona for consideration favor of as simple The remarks called to the assault. they

jurors’ attention were matters should considered, say

not have and we cannot

they influenced the state- Landrum, 112 Ariz. See

ments. prejudicial

544 P.2d at 664. This was er-

ror.

I also believe that these remarks were agree error. with the ma-

fundamental

jority’s statement that fundamental error goes heart of defendant’s

error that him essential to

case or takes from King, v.

his defense. I believe damaging as just

that these remarks are as designed jury’s call to the atten-

remarks did not take

tion the fact that defendant Considering testify.

the stand they may be of even

facts of this case

greater damage to the defendant. prosecutor’s statement

Because

regarding plea bargain, I would reverse

and remand for a new trial.

Allen, D. LaVelle Michael Kimerer & Smith, Kimerer, Tick- Suzanne K. Garth V. 770 P.2d 320 Phoenix, nor, petitioner. WIDEMAN, Petitioner, Edgar Jacob Atty. by Verkamp, Coconino Co. John Co. Thompson, Deputy Coconino Jon W. GARBARINO, The Honorable William F. Flagstaff, respondents. Atty., Judge County Superior of the Coconino Eckstein, Bain, by Paul F. P.A. Brown & Arizona; Court, State of John Ver- Barr, Phoenix, Bodney, Daniel C. David J. County Attorney, kamp, real Coconino Daily Sun/First for amici curiae Arizona interest, party Respondents. Arizona, Inc. Amendment Coalition No. CV-86-0611-SA. Chambers, Charles Ste- Julius LeVonne Ralston, City, for amicus phen York New Arizona, Supreme Court and Edu- Legal Defense curiae NAACP En Banc. Fund, cational Inc. Feb. HOLOHAN, Justice A. WILLIAM (Retired). special petitioner, filed a juvenile,

The respon- prevent in this action court allowing media the news judge dent from hearing1 in transfer public to attend a should that court juvenile to determine whether hearing proceeding in court is a 1. A transfer

Case Details

Case Name: State v. Valdez

Court Name: Arizona Supreme Court

Date Published: Jan 31, 1989

Citation: 770 P.2d 313

Docket Number: CR-87-0355-AP

Court Abbreviation: Ariz.