State v. Meeker, 5986
Citation | 143 Ariz. 256,693 P.2d 911 |
Decision Date | 21 December 1984 |
Docket Number | No. 5986,5986 |
Parties | STATE of Arizona, Appellee, v. Don Lester MEEKER, Appellant, |
Court | Supreme Court of Arizona |
Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel Criminal Div., Linda A. Akers, Asst. Attys. Gen., Phoenix, for appellee.
E. Sharon Storrs, Phoenix, H. Allen Gerhardt, Jr., Tempe, for appellant.
Don Lester Meeker, in pro. per.
Defendant was indicted on nine counts of armed robbery, class two felonies and one count of aggravated assault, a class three felony. The state alleged that these offenses were committed while defendant was on probation in violation of A.R.S. § 13-604.01. After a jury trial, defendant was convicted on all ten counts. Defendant was sentenced as follows: Count I (armed robbery), life imprisonment consecutive to the sentence defendant is presently serving in CR-126968; Counts II-VIII (armed robbery), life imprisonment concurrent to Count I; Count IX (armed robbery), life imprisonment consecutive to Counts I-VIII, and Count X (aggravated assault) life imprisonment consecutive to Count IX, resulting in three consecutive life imprisonment terms.
Thereafter defendant filed a petition for post conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S. A hearing was conducted and the trial court denied the petition. This case is before this Court on defendant's petition for post conviction relief consolidated with defendant's direct appeal. We have jurisdiction pursuant to Ariz. Const., art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033.
On appeal defendant raises four issues relating to ineffective assistance of counsel. In his petition for post conviction relief, defendant's attorney raised several issues relating to ineffective assistance of counsel. The issues raised in the petition for post conviction relief will be discussed to the extent that they do not overlap the issues raised in his appellate brief.
Defendant first claims he was denied effective assistance of counsel because his attorney did not request a hearing pursuant to Rule 609, Ariz.R.Evid., 17A A.R.S., to prohibit the use of his own prior felony conviction to impeach him should he testify at trial.
The test for ineffective assistance of counsel in Arizona is now a two prong test as espoused by State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984). The first prong, which comes from State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982) ( ), requires that the attorney show at least minimal competence in representing a criminal defendant. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ( ) In explaining the requirement of "minimal competence," the Court in Watson stated:
134 Ariz. at 4-5, 653 P.2d at 354-55.
The second prong of our test of ineffective assistance of counsel, adopted in State v. Lee, supra, from Strickland, supra, permits reversal only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Lee, 142 Ariz. at 214, 689 P.2d at 157, quoting Strickland, supra, at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In Lee we defined "reasonable probability" as less than "more likely than not but more than a mere possibility." State v. Lee, 142 Ariz. at 214, 689 P.2d at 157. Thus, even though defendant may show that counsel lacked minimal competence in making particular errors, the defendant must show they had an actual adverse effect on the defense. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, supra, at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. In setting out the guidelines for measuring the adverse effect of counsel's errors, the Court stated:
Strickland, supra, at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 698-99.
As to the first prong of the test for ineffective counsel, we find that counsel did not err in failing to request a 609 hearing on defendant's priors. Although in most circumstances a request for a 609 hearing to contest the use of priors would appear to be the norm, the factual circumstances in this case indicate a reasoned tactical decision to forego such a hearing.
The colloquy between the trial judge and defense counsel relating to the 609 hearing follows:
[The Court] "Court inquired to Mr. Hendrickson relative to there being no request for a 609 hearing for Mr. Meeker. The Court having understood that the defendant does, in fact, have priors and asked him if he proposed to request one, and if so, let's resolve it now. Basically that was my bottom line question, or if his client was not going to take the stand, I'll let Mr. Hendrickson respond and advise for the record what he advised to the Court at that time.
Apparently defense counsel thought it advantageous to have the prior convictions revealed rather than to hide them from the jury so the jury would discover that defendant had a relatively short and minor nonviolent criminal history rather than a long prior record of similar violent crimes. Thus, the jury would discover that defendant had a prior conviction for criminal trespass and not speculate that he may have committed other armed robberies. Disagreements as to trial strategy or errors in trial will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis. State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981) cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982); State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980). Not only did defense counsel articulate his tactical reason for not pursuing a 609 hearing but he discussed the matter with the defendant, and according to counsel defendant agreed that they should "not file a motion for a 609 hearing." We believe that the strategy articulated by defense counsel was rationally based and that the decision not to seek a rule 609 hearing demonstrated minimal professional competence. Cf. State v. Hankins, 141 Ariz. 217, 686 P.2d 740 (1984); State v. Oppenheimer, 138 Ariz. 120, 673 P.2d 318 (App.1983).
Additionally, even if the failure to request a rule 609 hearing was error by counsel, under the second prong of our ineffective counsel test adopted in Lee such error did not prejudice defendant. Defendant did not testify at trial, and thus the defendant's prior felonies were never brought to the attention of the jury. Defendant's choice in not testifying was not based on the prospect of being impeached by the prior felony convictions but was based on rebuttal evidence held by the state. At the post conviction relief evidentiary hearing, defendant's trial counsel testified that he advised him of the state's use of rebuttal evidence.
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