State v. Carriger

• Citation: 143 Ariz. 142,692 P.2d 991
• Decision Date: 06 December 1984
• Docket Number: No. 4457-3,4457-3
• Parties: STATE of Arizona, Appellee, v. Paris Hoyt CARRIGER, Appellant.
• Court: Supreme Court of Arizona

Page 991

692 P.2d 991

143 Ariz. 142

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

No. 4457-3.

Supreme Court of Arizona, In Banc.

Dec. 6, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gerald R. Grant, Asst. Attys. Gen., Phoenix, for appellee.

Donald H. Bayles, Jr., Flagstaff, and Robert J. Hirsh, Tucson, for appellant.

HAYS, Justice.

Petitioner Paris Carriger was tried by a jury and convicted of first degree murder and robbery on July 25, 1978. Carriger appealed his convictions and sentences to this court, and we affirmed them in State v. Carriger, 123 Ariz. 335, 599 P.2d 788 (1979), cert. denied, 444 U.S. 1049, 100 S.Ct. 741, 62 L.Ed.2d 736 (1980) (Carriger I). In 1982 Carriger filed a Rule 32 petition in this court. See 17 A.R.S. Arizona Rules of Criminal Procedure, rule 32. We found that trial counsel had been ineffective at sentencing, so we reversed the sentence and remanded the matter to the trial court with instructions to resentence Carriger and to consider any other matters properly raised. State v. Carriger, 132 Ariz. 301, 305, 645 P.2d 816, 820 (1982) (Carriger II).

The trial court rejected all of Carriger's Rule 32 claims, and resentenced Carriger to death. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3); Rule 32, supra; and A.R.S. § 13-4031.

This case is before us procedurally on two different legal theories. This is a continuation of the first Rule 32 petition and an appeal from resentencing. We will consider the Rule 32 petition, then address the issues arising out of the resentencing.

RULE 32

Before we address the issues presented in the instant case, a review of Rule 32's functions and requirements would be beneficial. The Rule's functions can be understood, in part, by contrasting the Rule with the function of an appeal.

Although both Rule 32 and the right to appeal are legal devices designed to ensure that every defendant is afforded due process of law, each device has its own usefulness and requirements. In Arizona, the appeal is the post-conviction proceeding of primary importance. The right to appeal is guaranteed by our constitution, Ariz. Const. art. 2, § 24, but the Rule 32 procedure is not. The right to appeal is of such importance that after sentencing, the judge must inform the defendant of his right to appeal, see Rule 26.11(a), and "[h]and the defendant" written notice of his rights concerning appellate review, Rule 26.11(c), and how "to exercise them" Id. There is no comparable requirement for Rule 32.

Rule 32 is separate and apart from the right to appeal, see State v. Gause, 112 Ariz. 296, 541 P.2d 396 (1975), cert. denied, 425 U.S. 915, 96 S.Ct. 1515, 47 L.Ed.2d 766 (1976), and it is not designed to afford a second appeal, see State v. Salazar, 122 Ariz. 404, 406, 595 P.2d 196, 198 (App.1979), vacated on other grounds, State v. Pope, 130 Ariz. 253, 256, 635 P.2d 846, 849 (1981). It is not intended to unnecessarily delay the renditions of justice or add a third day in court when fewer days are sufficient to do substantial justice. See State v. Guthrie, 111 Ariz. 471, 473, 532 P.2d 862, 864 (1975). In all cases, civil or criminal, there must be an end to litigation. See State v. Scrivner, 132 Ariz. 52, 643 P.2d 1022 (App.1982).

The type of issues an appellant can raise in an appeal and the number of issues an appellant can raise are not limited by a per se rule. Cf. Ariz. Const. art. 2, § 24; A.R.S. § 13-4031; Rule 31.13(c)(1)(iv) (none of which set any limits on appeal). As a long-standing practice, however, this court, like other appellate courts, will not tolerate a party's presentation of claims that have no arguable merit. If meritorious, we will consider a claim even if the claim ultimately does not constitute reversible error. The type of issues a petitioner may raise in a Rule 32 petition are limited by court rule. See Rule 32.1.

This indicates that the appeal is the preferred method for presenting claims of reversible error. This preference is based on the important consideration of judicial economy and other valid, practical considerations.

If a defendant raises all arguable claims in the first appeal, the appellate court will be better able to make a determination as to whether the defendant has had a fair trial. Once decided, the court's docket will not be filled with repetitious actions. See State v. McFord, 132 Ariz. 132, 644 P.2d 286 (App.1982) (seventh Rule 32 petition dismissed). Because the appeal is so important, the courts are charged with informing the defendant of his appellate rights. Thus, our rules are designed to facilitate prompt, full, appellate consideration.

Also, appeals must be filed shortly after conviction; Rule 32 petitions are often filed, as in this case, years after the trial. When the appeal is filed, the witnesses' memories and evidence are fresh and readily available should a new trial be required. When a Rule 32 petition is filed, the witnesses' testimony may be lost because of dimmed memories or death and physical evidence may be lost, destroyed, or misplaced.

In summation, appeal is designed to give prompt, full appellate review to those who have grounds to believe they have not had a fair trial. Important policy considerations require that all claims be raised in the appeal. Rule 32 "is designed to accommodate the unusual situation where justice ran its course and yet went awry." Id. at 133, 644 P.2d at 287. Rule 32 is a safeguard in addition to the many others that are part of our system, but it may not be abused.

Petitioners must strictly comply with Rule 32 or be denied relief. Gause, supra. Failure to comply with Rule 32 procedure will result in a finding that petitioner waived his right to present a Rule 32 petition. See State v. Herrera, 121 Ariz. 12, 588 P.2d 305 (1978), cert. denied, 441 U.S. 949, 99 S.Ct. 2175, 60 L.Ed.2d 1054 (1979). It is the petitioner's burden to assert grounds that bring him within the provisions of the Rule in order to obtain relief. See Salazar, supra. Carriger has not met his burden.

Rule 32.2(c) provides in pertinent part that "[t]he court may infer from the petitioner's failure ... to raise an issue on appeal after being advised by the sentencing judge of the necessity that he do so ... that he knowingly, voluntarily and intentionally relinquished the right to do so." Subsection (d) indicates that the inference shall be considered part of the evidence.

More than 3 1/2 years after conviction, and 2 1/2 years after we affirmed his conviction, Carriger filed this petition. The state pleaded the issue of preclusion, see Rule 32.2(d), but presented no evidence in support at the Rule 32 hearing. Carriger claims that he is, therefore, not barred from raising claims not raised in Carriger I. We disagree.

The state may choose to present evidence of preclusion before or after a petitioner has presented evidence to overcome the inference, but a petitioner is barred from presenting a Rule 32 petition unless he overcomes the inference of Rule 32.2(c). To support a finding of waiver under subsection (c), the record must indicate that petitioner was aware of the necessity of raising in his appeal the claim he now presents and that he knowingly, voluntarily and intentionally waived his right to present his claim.

In his Rule 32 petition, Carriger points out what he claims are several instances of incompetent representation. We find that Carriger was aware of the necessity of raising competency of counsel issues on appeal. On September 6, 1978, he filed a handwritten motion for new counsel for purposes of appeal. In the motion, he alleged that Thurman Gay, chief defense attorney, was incompetent, based on Gay's failure to conduct a proper pretrial investigation, among other allegations. Carriger told the trial judge after sentencing that he wanted new counsel because of the claims he wanted to raise, and the inconsistency of retaining Gay to raise those claims. The trial judge responded that Carriger was correct to bring that issue to the court when he did. The court granted the motion and, as Carriger requested, appointed a different attorney. We find that Carriger was sufficiently informed of the necessity of raising competency of counsel issues on appeal. Carriger worked extensively preparing for his trial. The record contains cogent suggestions from Carriger to counsel concerning whom counsel should subpoena, what questions he wanted counsel to ask him while he was on the stand, and what items should be argued to the jury. Carriger reviewed the deposition of the state's key witness and pointed out the inconsistencies between it and the police reports. Carriger urged counsel to present as much evidence as possible because "sheer weight of numbers can sometimes do what the evidence can't. And the more there is, the better at reversible error." Carriger also requested counsel to visit him more often and investigate items Carriger brought to counsel's attention. In addition, Carriger indicated that he had "defended inmates for years in prison disciplinary" proceedings, and was active in civil rights litigation.

Carriger's appellate counsel, Christy Wotruba, testified at the Rule 32 hearing. She said that she was appellate counsel for eight months and that during that time she had a "rather lengthy interview" with Carriger and an "extensive correspondence[,] ... telephone calls and a great deal of contact with him." She had much more contact with Carriger than she had with her average client. She often received "letters of assistance, instruction, and direction" from Carriger. She called him "a self-styled jailhouse lawyer and a very good one at that, and he was to provide me with cases and citations and things that I should look up." Before the Rule 32 hearing, Carriger's present counsel wrote Wotruba to determine whether she had raised all possible claims in the first appeal, to which she replied: "I believe I raised all arguable...