State v. Moreno
| Decision Date | 20 February 1981 |
| Docket Number | No. 4942,4942 |
| Citation | 625 P.2d 320,128 Ariz. 257 |
| Parties | STATE of Arizona, Appellee, v. Pete Luis MORENO, Appellant. |
| Court | Arizona Supreme Court |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Michael D. Jones, Asst. Attys. Gen., Phoenix, for appellee.
Steven H. Schneider, Phoenix, for appellant.
Following trial to a jury, appellant was convicted of first degree murder and was sentenced to life imprisonment without possibility of parole for 25 years. Taking jurisdiction pursuant to A.R.S. § 13-4031 (Supp.1980) , we affirm the judgment of conviction and the sentence.
Appellant was convicted of murdering Ernesto Salinas outside a Phoenix bar on January 12, 1979, at 1:00 A.M. The victim's wife, Christina Salinas, was an eyewitness to the killing. Additional facts necessary for the determination of this appeal shall be discussed throughout the opinion.
Appellant first contends he was denied the effective assistance of counsel because his trial attorney failed to investigate potential defenses, to consult with appellant, and to introduce evidence to support an instruction on a lesser degree of murder.
In support of his contentions, appellant offered at an evidentiary hearing held in connection with his motions for new trial, 1 testimony designed to demonstrate the availability of a diminished capacity "defense." 2 The testimony revealed that, at the time of the murder, appellant had purportedly consumed considerable quantities of beer, injected heroin, and was under the influence of a prescription drug, Serax. Appellant argues that trial counsel was aware of those facts and that adequate investigation would have revealed witnesses whose testimony would have elicited those facts at trial.
From the first interview between appellant and his trial counsel through appellant's testimony at trial, appellant insisted he remembered clearly what happened the night of the shooting and he flatly stated that he did not shoot Ernesto Salinas. Trial counsel stated that at the first interview he raised the issue of voluntary intoxication and alternative defenses and urged appellant to tell him if he didn't remember all that occurred. Appellant made the remark that "I remember what happened that night, and I did not shoot that man."
Appellant insistently and consistently asserted his innocence at a bond hearing, in his correspondence with trial counsel, and at trial. There was no indication that appellant's recollection was faulty, unclear, or incomplete. We feel that trial counsel was entitled to rely upon his client's assertions and was under no obligation to disprove their veracity. Moreover, the investigation conducted by trial counsel revealed past heroin use, including prior heroin-related convictions, and the use of the prescription medication, Serax. Pretrial interviews with a number of witnesses failed to disclose either current drug use or abuse of the prescribed drug. Following the verdict, those same witnesses amended their recollections to reveal extensive heroin use and a marked increase in the amount of beer reportedly consumed by appellant at the time of the murder.
Given appellant's adamant denial of guilt and his recollection of the evening's events as well as the investigations which revealed witnesses essentially able to corroborate appellant's original story, we do not think it was incumbent upon trial counsel to pursue inconsistent alternative theories not based upon the facts presented to him. Nor do we think, as appellant's new counsel appeared to argue at the evidentiary hearing, that trial counsel should exceed the bounds of ethical, if not legal, propriety and present a defense inconsistent with the facts. In argument, second defense counsel stated:
We sincerely hope we have misunderstood the argument with respect to the subornation of perjury as an alternative theory of the case.
Appellant would also have us reject the current standard by which we weigh claims of ineffective assistance of counsel; that is, whether the proceedings were rendered a sham or mockery of justice, State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966), cert. denied, 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1967), and replace it with the reasonably effective assistance of counsel standard. We have no occasion to address the issue here because no matter which standard is applied, trial counsel's efforts were satisfactory. See State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979). In fact, at the close of trial, the court observed:
And while it is fresh in my mind, I do want to say that both the State and the defense counsel have, in the Court's opinion, done an excellent job in respect to their respective clients, and I appreciate that.
Appellant next argues that the attorney-client privilege was violated when trial counsel met with a deputy county attorney prior to the evidentiary hearing on the motions for new trial and revealed certain previously privileged information. Appellant would have us hold that if the privilege was violated it was prejudice per se entitling appellant to a new trial.
The claim of ineffective assistance of counsel is a direct attack on the competence of an attorney and constitutes a waiver of the attorney-client privilege. State v. Griswold, 105 Ariz. 1, 457 P.2d 331 (1969); State v. Krutchen, supra. The attorney may reveal at least that much of what was previously privileged as is necessary to defend against the charges raised. It is not only the integrity of the attorney which is at stake but that of the entire fact-finding process. State v. Griswold, supra. Whether it be on appeal, State v. Lawonn, 113 Ariz. 113, 547 P.2d...
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State v. Tison
...... We have not adopted the reasonably effective assistance of counsel as the test. Nevertheless, after examining the record, we find no indication that trial counsel's efforts were inadequate judged by either standard. See State v. Moreno, 128 Ariz. 257, 625 P.2d 320 (1981); State v. Flewellen, 127 Ariz. 342, 621 P.2d 29 (1980). . The burden of establishing the ineffectiveness of trial counsel is upon a claimant, State v. Pacheco, 121 Ariz. 88, 588 P.2d 830 (1978); see State v. Watson, 114 Ariz. 1, 559 P.2d 121 ......
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State v. Gerlaugh, s. 5216
...INSTRUCTION The trial court must instruct on every grade of an offense which evidence presented at trial will support. State v. Moreno, 128 Ariz. 257, 625 P.2d 320 (1981); State v. Contreras, 107 Ariz. 68, 481 P.2d 861 (1971). Appellant asserts the court erred in refusing to instruct the ju......