State v. Britson, 4056

• Decision Date: 14 October 1981
• Docket Number: No. 4056,4056
• Parties: STATE of Arizona, Appellee, v. Richard Bud BRITSON, Appellant.
• Court: Arizona Supreme Court

Page 628

636 P.2d 628

130 Ariz. 380

STATE of Arizona, Appellee, v. Richard Bud BRITSON, Appellant.

No. 4056.

Supreme Court of Arizona, In Banc.

Oct. 14, 1981.

Rehearing Denied Nov. 24, 1981.

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee

Charles L. Weninger, Tucson, for appellant

GORDON, Justice:

On June 29, 1977, appellant Britson was convicted of first-degree murder, armed kidnapping with a prior felony conviction, and armed burglary with a prior felony conviction. Subsequent to an aggravation-mitigation hearing, he was sentenced to death for the first-degree murder charge on October 24, 1977, and given concurrent sentences of 20 to 60 years on the armed kidnapping charge and 10 to 20 years on the armed burglary charge. Appellant was resentenced to death on the charge of first-degree murder on March 27, 1979, after a hearing on a petition for post-conviction relief. From these judgments and sentences, he appeals. We have jurisdiction pursuant to A.R.S.Const. Art. 6, § 5(3) and A.R.S. § 13-4031. We affirm.

FACTS

The testimony elicited at trial tended to show the following. On July 25, 1977, due to appellant's inability to pay rent, his wife moved into a trailer with two other men, Chapman and Anderson. Appellant had not objected to this living arrangement initially, and he often visited his wife at this trailer. Sometime after appellant's wife moved into the trailer, she began having sexual relations with Anderson. She refused on at least two occasions to return to living with appellant and on several occasions indicated she wanted a divorce. On August 25, 1977, appellant arrived at the trailer carrying a six-pack of beer and a brown paper sack, which he told his wife contained beans. He was met at the door by Anderson, who was holding a knife in his right hand. At appellant's request, Anderson put the knife down. Appellant sat down on a couch with his wife and placed the brown paper sack underneath an adjacent rollaway bed. He, his wife, and Anderson sat together for some time, drinking beer and talking. At some point, appellant went to the bathroom, taking his sack with him, and emerged with a gun. He told Anderson, "You might have a knife, but I got a gun." Appellant then shot and killed Anderson. Appellant's wife suggested they call the police and an ambulance, but appellant refused. He forced his wife to accompany him to a Tucson hotel, where they stayed until August 29, 1977, when appellant turned himself in to the police.

EFFECTIVE ASSISTANCE OF COUNSEL

The argument appellant pursues most vigorously is that he was denied his right to effective assistance of counsel because his attorney failed to prepare properly for trial. As we noted in State v. Marquez, 127 Ariz. 98, 618 P.2d 592 (1980), we have not retreated from the rule that a conviction will be reversed because of ineffective assistance of counsel only if "the representation by a defendant's lawyer was so ineffective that the proceedings were reduced to a farce, sham or mockery of justice." State v. Williams, 122 Ariz. 146, 150, 593 P.2d 896, 900 (1979). As Williams noted, this standard has come under increasing attack. The Ninth Circuit Court of Appeals, for example, has recently concluded "that the 'farce and mockery' standard has been outmoded" and held "that the Sixth Amendment requires that persons accused of crime be afforded reasonably competent and effective representation." Cooper v. Fitzharris, 586 F.2d 1325, 1327, 1328 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Whether we scrutinize counsel's representation in the case before us by the standard of "farce, sham or mockery of justice" or by a standard such as "reasonably competent and effective representation" advanced by the Ninth Circuit, we conclude that appellant was provided effective assistance of counsel.

We observed in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924, 99 S.Ct. 1254, 59 L.Ed.2d 478 (1979), that when a trial is not on its face a sham or farce, "in order to show that the preparation for an otherwise adequate trial was insufficient, defendant had to show that counsel's failure to investigate resulted Appellant claims he was denied effective representation of counsel based on the following: (1) Reconstruction of the scene of the crime, which was important to lend credibility to appellant's testimony, was not begun until five days after trial began and then was done by an unqualified expert; (2) No pretrial determination was obtained as to whether appellant could explain his prior convictions; and (3) Counsel's preparation for trial was, appellant contends, generally inadequate.

in not presenting evidence or interposing a defense which would have made a crucial difference at the trial." 120 Ariz. at 450, 586 P.2d at 1262. Similarly, the Ninth Circuit held in Cooper, supra, that "(w)hen the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial * * * relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct." 586 F.2d at 1331. Appellant has pointed us to nothing demonstrating that he was prejudiced by purported deficiencies in his counsel's representation.

A review of the record discloses that the trial court recognized as qualified the expert used to reconstruct the scene. The fact that the reconstruction was not begun until five days after trial began did not by itself prejudice appellant. No showing has been made that the delayed reconstruction prevented the presentation of any evidence or defense that would have made a crucial difference to the outcome of appellant's trial.

Defense counsel's failure to move in limine to allow appellant to give mitigating explanations regarding his prior felony convictions cannot have been prejudicial. The trial judge excluded such explanations in reliance on State v. Pavao, 23 Ariz.App. 65, 530 P.2d 911 (1975), which clearly holds that such explanations are disallowed. There is no reason to believe that the trial judge would have made a different decision regarding their admission had the question come up before trial instead of during trial.

Appellant argues that if his counsel knew before trial that appellant would not be allowed to explain the prior convictions, he should have moved to preclude the state from using the prior convictions to impeach appellant's credibility. Before appellant testified at trial, his attorney moved in limine to preclude the prosecutor from impeaching appellant's credibility with any prior convictions other than the two from Illinois and one from Minnesota which were included in the charges against appellant. Defense counsel further challenged the Minnesota conviction on the grounds of an incomplete record. He did not otherwise seek to preclude use of the Illinois and Minnesota convictions for purposes of impeachment.

We find appellant's argument that his trial counsel should have moved to exclude evidence of all of appellant's prior convictions for impeachment purposes to be persuasive. Appellant has failed to indicate, however, how this flaw in his counsel's representation prejudiced him, see Cooper, supra, or "made a crucial difference to the case at the trial," Watson, 120 Ariz. at 450, 586 P.2d at 1262. At the time of appellant's trial, the admissibility of prior convictions for impeachment purposes was controlled by State v. Domme, 111 Ariz. 464, 532 P.2d 526 (1975), which held that admissibility was "left to the sound discretion of the trial judge whose decision will not be overturned in the absence of an abuse of discretion." Id. at 465-66, 532 P.2d at 527-28. We find no indication in the record, nor does appellant assert, that had appellant's counsel moved to exclude use of the Illinois and Minnesota convictions for impeachment purposes, the trial court would have granted such a motion.

Finally, appellant criticizes in general his counsel's preparation for trial. He alleges that defense counsel failed to adequately interview vital witnesses prior to trial, that defense counsel failed to prepare properly for cross-examination of some witnesses and in general prepared inadequately for trial. Although appellant alleges many deficiencies in his counsel's pretrial preparation,

he fails to show how defendant may have been prejudiced by any purported shortcomings. Absent a demonstration of prejudice to defendant due to his counsel's preparation for trial, we will not find that prejudice occurred. We find defendant was not deprived of his right to effective counsel.

DELETIONS FROM TAPE-RECORDED STATEMENTS

When appellant turned himself in to the South Tucson Police Department, he gave two tape-recorded statements in which he admitted shooting Anderson and claimed he did so in self-defense. During these statements, appellant offered on several occasions to take a lie-detector test to prove he was telling the truth. On the day trial began, the state moved to exclude testimony regarding offers by the defendant to take a polygraph test. The trial court granted the state's motion with the exception that the state was prohibited from deleting from appellant's tape-recorded statements remarks concerning his willingness to take a lie-detector test.

The state petitioned the Court of Appeals, Division Two, to reverse the lower court order. In response, the Court of Appeals issued an order directing the trial court to grant the state's motion to delete the portions of appellant's statements relating to his willingness to submit to a lie-detector test. Appellant contends the Court of Appeals erred in issuing such an order.

Appellant cites United States v. Wenzel, 311 F.2d 164 (1962), for the proposition that when a defendant's confession is introduced into evidence, it is the defendant's right to have all of it, not just part of it,...