State v. Carriger, 4457-2-PC

• Decision Date: 05 May 1982
• Docket Number: No. 4457-2-PC,4457-2-PC
• Citation: 132 Ariz. 301,645 P.2d 816
• Parties: STATE of Arizona, Appellee, v. Paris Hoyt CARRIGER, Appellant.
• Court: Arizona Supreme Court

Page 816

645 P.2d 816

132 Ariz. 301

STATE of Arizona, Appellee, v. Paris Hoyt CARRIGER, Appellant.

No. 4457-2-PC.

Supreme Court of Arizona, In Banc.

May 5, 1982.

Thomas E. Collins, Maricopa County Atty. by Jessica Gifford, Deputy Maricopa County Atty., Phoenix, for appellee

Hirsh & Bayles by Donald H. Bayles, Jr., Tucson, for appellant.

CAMERON, Justice.

We granted the petition of the defendant, Paris Hoyt Carriger, for review of the trial court's denial of his petition for post-conviction relief. We have jurisdiction pursuant to A.R.S. § 13-4031 and Rule 32.9, Arizona Rules of Criminal Procedure, 17 A.R.S.

We must answer two questions on review:

1. Does the record show that the defendant was denied effective assistance of counsel at the sentencing hearing?

2. Did the trial court abuse its discretion in failing to hold a hearing on defendant's petition for post-conviction relief?

The facts necessary for a determination of this matter are as follows. Defendant was tried, convicted and adjudged guilty of the crimes of robbery and murder in the first degree. He was sentenced to death for the murder and 99 years for the robbery. He appealed the matter to this court and we affirmed the conviction and sentence. State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979).

Defendant was represented by one lawyer at trial and a second lawyer on appeal. After the appeal, a third lawyer was appointed for defendant and he petitioned the trial court for post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S. Upon filing, the trial court ordered the time for response and reply, and indicated the court would then "determine whether to dismiss the petition summarily, set it for an informal conference or an evidentiary hearing." After the pleadings were filed, the trial court set an informal (prehearing) conference at which time counsel for the State and the defendant were heard. The trial judge then denied the petition. Thus, the petition for post-conviction relief was denied without an evidentiary hearing. Defendant petitioned this court for review of the decision of the trial court pursuant to Rule 32.9, Arizona Rules of Criminal Procedure, 17 A.R.S.

EFFECTIVE ASSISTANCE OF COUNSEL

In the petition for post-conviction relief pursuant to Rule 32, supra, the defendant stated that he was denied effective assistance of counsel during sentencing because of the failure of his counsel

" * * * to act as a partisan advocate on behalf of defendant Carriger in investigating and assembling available mitigating evidence. Defense counsel absolutely failed to contact available witnesses or otherwise undertake any investigation This allegation is supported by the transcript of the record which was in the file and available to the trial court at the time of the ruling and which was referred to and quoted from in the petition for post-conviction relief. The transcript of the sentencing reads as follows:

whatsoever in an effort to present mitigating evidence to the court. As a result of this utter failure, the court was deprived of available mitigating evidence which was necessary to properly evaluate and render a decision as to whether or not Paris Carriger should be executed. * * * "

"THE COURT: We turn then to the defense, any mitigation, and I want to clarify that you may present any and all mitigation that you wish to present.

"MR. GAY: Your Honor, the word mitigation means, in my vocabulary, or taken in this text means, yes, Mr. Carriger, you did it but you shouldn't be given this particular penalty because of something else or that he did or did not do in his past. I could point out a number of good things about Mr. Carriger's past. I could point out that all the time that he was in prison, that he never had any problems. I could point out that he is a very gentle person in a number of ways.

On the other hand to point those things out to the court, I am actually saying that Mr. Carriger did kill Mr. Shaw and he didn't. He is totally innocent of this charge, and therefore, for us to mitigate a crime which he did not perform is more or less useless, and therefore, we do not plan to call any witnesses in his behalf. Thank you.

"THE COURT: You have any further mitigation of any sort at this time? I want to clarify that from the standpoint of the record, again the provisions of 13-454 require that-if first degree murder, that the court shall pronounce the death penalty if any of the six provisions under section E are apparent. Then, the mitigation circumstances, if there are mitigation circumstances, then of course the court is to resort to the only other penalty which is life imprisonment without possibility of parole for 25 years.

Six F has also been broadened by the Supreme Court of the United States and the Supreme Court of this State wherein any and all areas of mitigation whether it deals with the defendant's character or whatever, may be presented to this court, and that mitigation is, let's say, to be considered by the court in whether or not the court must follow the mandatory provisions of 13-454 and impose the death penalty or whether mitigation in the code section or any and all other mitigation calls for the life term sentence.

Once again I ask, is there any additional mitigation?

"MR. GAY: I have nothing further, Your Honor. I think, of course, I know that the court will take into consideration Dr. Bendheim's report and the other reports."

Defendant's petition for post-conviction relief in the Superior Court also contained numerous affidavits of people willing to testify in mitigation for the defendant, as well as affidavits from attorneys familiar with the criminal law practice expressing their opinion that the defendant did not receive adequate representation. Thus the issue raised and the facts supporting it were squarely before the court.

The duty of defense counsel in representing his client does not terminate with a determination of guilt, but extends to the sentencing stage. Rule 6.3(b), Arizona Rules of Criminal Procedure, 17 A.R.S.; Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

" * * * It has been the rule in Arizona since State v. Kruchten, (citations omitted), that a conviction will not be set aside unless the representation by a defendant's lawyer was so ineffective that the proceedings were reduced to a farce, sham or mockery of justice. (citations omitted)" State v. Williams, 122 Ariz. 146, 150, 593 P.2d 896, 900 (1979).

And the United States Ninth Circuit Court of Appeals has concluded that the "farce and mockery standard has been outmoded" and that a "reasonably competent and effective representation" standard is a more "apt and accurate" standard. See Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978).

In the instant case, we have no difficulty in finding that counsel's representation fell below both standards. It is true that many acts or failures to act on the part of the defense counsel at the guilt determination stage can often be attributed or ascribed to trial strategy, and we will not second-guess such trial strategy simply because defendant, by hindsight, may contend on appeal that such representation did not measure up to the necessary standard. At the punishment or sentencing stage, the duty of the attorney is clearer and easier to evaluate. At a minimum, defendant's attorney had the obligation to challenge the admission of aggravating evidence where reasonably possible and to present available pertinent mitigating evidence. As the Louisiana court noted:

"This Court does not sit to second-guess strategic and tactical choices made by trial counsel. We are aware that understatement and deliberate omission may be sometimes based on informed tactical judgment. However, when counsel's acts and omissions reduce his role to one approaching that of a neutral observer, a defendant is denied the effective assistance of counsel." State v. Myles, 389 So.2d 12, 31 (La.1979).

We believe in this case that the attorney's conduct approached that of a neutral observer and that the sentences imposed must be set aside and the matter remanded to the trial court for rehearing and resentencing.

The State contends, however, that the trial court had the right to rely upon Rule 32.2, Arizona Rules of Criminal Procedure, 17 A.R.S., which states:

"Rule 32.2. Preclusion of remedy

"a. Preclusion. A petitioner will not be given relief under this rule based upon any ground:

(2) Finally adjudicated on the merits on appeal or in any previous collateral proceeding;

(3) Knowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding."

In the prior appeal to this court, the defendant raised the question of inadequate representation of counsel, and we stated:

"Carriger next contends that since his counsel failed to cross-examine the witness on the prior convictions, he was denied effective assistance of coun...