State v. Clark

Decision Date19 January 1999
Docket NumberNo. 1 CA-CR 97-0673.,1 CA-CR 97-0673.
Citation2 P.3d 89,196 Ariz. 530
PartiesSTATE of Arizona, Appellee, v. Howard James CLARK, Appellant.
CourtArizona Court of Appeals

Janet A. Napolitano, Arizona Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Colleen L. French, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by James H. Kemper, Deputy Public Defender, Phoenix, Attorney for Appellant.

Howard James Clark, Florence, In Propria Persona.


RYAN, Judge.

¶ 1 Howard James Clark appeals from his convictions and sentences for one count of attempted first degree murder, a class two, nonrepetitive, dangerous felony, and one count of aggravated assault, a class three, nonrepetitive, dangerous felony. Counsel for Clark has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record and found no arguable question of law upon which an appeal can be based. Clark filed a supplemental brief in propria persona ("pro per").

¶ 2 Recently, the Ninth Circuit Court of Appeals held that compliance with Anders requires counsel to set forth an arguable issue or issues in the brief. Robbins v. Smith, 152 F.3d 1062 (9th Cir.1998),amending 125 F.3d 831 (9th Cir.1997). Under Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we ordered the parties to file supplemental briefs addressing whether this court's procedure,1 which does not require appointed counsel to allege arguable issues if counsel determines none exist, complies with Anders in light of the Robbins decision. Counsel responded and we publish this decision to guide appointed counsel in the preparation of an indigent appellant's brief after counsel has determined there are no arguable issues to the appeal.


¶ 3 Clark, almost sixty and legally blind, lived alone in a trailer and conducted a mechanic's business. As a result of his blindness, numerous friends stopped by from time to time to assist Clark with his daily tasks. One of these friends introduced Clark to M.L.2 M.L. offered to stay with Clark to help him with his problems and his business. Clark accepted.

¶ 4 After M.L. had roomed with Clark for several weeks he invited a friend, E.S., to visit him. On the night of November 18, 1996, M.L., E.S., and several others had a party in Clark's trailer. Clark was visiting a friend that night and did not return home until the early morning hours of the next day.

¶ 5 That next day, two of his neighbors, Nellie Saliva and Michelle Parker, found E.S. behind the bar in Clark's trailer. Nellie and Michelle knew that Clark allowed no one behind the bar because he kept his personal things there. Suspicious, the pair followed E.S. into Clark's bedroom. There they saw that E.S. had packed several of Clark's things into her duffel bag and seemed to be preparing to leave. Michelle told Clark, who confronted E.S.

¶ 6 E.S. insisted she was not attempting to steal anything. Clark became angry and threw a tape case at her, striking her. Upset, E.S. ran from the trailer. Outside, M.L. was working on one of the vehicles that Clark had accepted for repair. E.S. ran past M.L., who followed her to determine what was wrong.

¶ 7 Clark then stepped out onto the porch of his trailer with a pistol. He yelled to M.L. to bring E.S. back so he could shoot her. Clark pointed the pistol in their direction. M.L. told Clark that he could not shoot because M.L. was in the way. Clark responded, "Fine, I'll shoot you." Clark fired and the bullet ricocheted off a nearby vehicle and struck M.L. in the back.

¶ 8 E.S. ran to a convenience market across from Clark's trailer and called 911. Eventually, M.L. also made it to the convenience market. The paramedics arrived and M.L. was taken to the hospital. He was treated and released the following morning.

¶ 9 In the meantime, Maricopa County deputy sheriffs had arrived and contacted Clark. Clark, now alone in his trailer, denied shooting M.L. but refused to come out and talk with police. Clark told the police that he had a flamethrower and explosives in the trailer and that he had a hostage. The deputies did not know if Clark was telling the truth, and a two-and-a-half hour stand-off ensued. Finally, Deputy David Head arrived and talked Clark into surrendering. The deputies never recovered the weapon used to shoot M.L..

¶ 10 Clark was indicted on one count of attempted first degree murder, one count of attempted second degree murder (later withdrawn), and one count of aggravated assault. At trial, M.L. and E.S. testified that Clark had pointed a pistol at them and fired, hitting M.L.. Both witnesses were certain that Clark was the one that shot M.L.. In addition, the State presented evidence that Clark made phone calls from jail to ask a friend to make E.S. "disappear" before she could testify. There was also evidence that Clark offered to send M.L. to California at the time of trial to prevent him from testifying.

¶ 11 Clark defended on the basis that a "Mexican man" had actually shot M.L. Clark claimed that the man was a friend of M.L.'s who became upset when the drug deal they were transacting turned sour. Previously, on cross-examination, Clark's counsel had brought out that M.L. had seven baggies of methamphetamine when he was shot.

¶ 12 The jury convicted Clark of the two charges. The trial court sentenced Clark to concurrent, presumptive terms of 10.5 years on the attempted murder charge and 7.5 years on the aggravated assault charge. Clark appeals. We have jurisdiction under article 6, section 9 of the Arizona Constitution and Arizona Revised Statutes Annotated ("A.R.S.") sections 12-120.21, 13-4031, and 13-4033.


¶ 13 We first discuss the question whether this court's procedure for dealing with Anders appeals is constitutional in light of the Robbins decision. In Robbins, appointed counsel, following the procedure approved by the California Supreme Court in People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979), filed a brief in the California Court of Appeal "which briefly outlined the facts surrounding Robbins's trial and failed to present any possible grounds for appeal." 152 F.3d at 1064. Counsel also asked the court to review the record for arguable issues and promised to remain available to address any issues found by the court. Id. The Robbins court held that this procedure failed to comply with Anders because counsel "completely failed to identify any grounds that arguably supported an appeal." Id. at 1067. It thus affirmed the federal district court's grant of habeas corpus relief. Id. at 1069.

¶ 14 We think our court's procedure, much like the procedure used in other jurisdictions, better appreciates appointed counsel's ethical obligations while still providing indigent appellants their constitutional rights to counsel, due process, and equal protection. We disagree with the Robbins decision and accordingly decline to follow it. See State v. Vickers, 159 Ariz. 532, 543 n. 2, 768 P.2d 1177, 1188 n. 2 (1989) (declining to follow a Ninth Circuit opinion holding Arizona's death penalty statute unconstitutional because that opinion rested on "grounds on which different courts may reasonably hold different views of what the Constitution requires").


¶ 15 In Anders, the United States Supreme Court first attempted to determine the extent of appointed appellate counsel's duty to "prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." 386 U.S. at 739, 87 S.Ct. 1396. There, the defendant's court-appointed lawyer, following California's established procedures, wrote a letter advising the appellate court that he had concluded his client's appeal had no merit. Id. Simultaneously, he advised that court that the defendant wished to file a brief on his own behalf. After reviewing the defendant's brief and the record, the California appellate court affirmed the conviction. Id. Subsequently, the defendant filed a habeas corpus petition with the California Supreme Court. The California Supreme Court also affirmed defendant's conviction. Id. at 740-41, 87 S.Ct. 1396. The United States Supreme Court reversed, holding:

On a petition for a writ of habeas corpus some six years later [the court] found the appeal had no merit. It failed, however, to say whether it was frivolous or not, but, after consideration, simply found the petition to be "without merit." The [California] Supreme Court, in dismissing this habeas corpus application, gave no reason at all for its decision and so we do not know the basis for its action. We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae. . . . Hence California's procedure did not furnish petitioner with counsel acting in the role of an advocate nor did it provide that full consideration and resolution of the matter as is obtained when counsel is acting in that capacity.

Id. at 743, 87 S.Ct. 1396. The Court concluded that such an approach "does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment." Id. at 741, 87 S.Ct. 1396.

¶ 16 The Court then reviewed the line of cases dealing with an indigent defendant's appellate rights. See, e.g., Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (necessity of providing a transcript for indigent defendants on appeal); Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (appointment of counsel on appeal). Relying on the equal protection rationale of these decisions, the Court described what is required of appointed appellate counsel when counsel determines no...

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