State v. Conde
| Decision Date | 10 September 1992 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Efran Ismael CONDE, Appellant. 90-0475. |
| Court | Arizona Court of Appeals |
Efran Ismael Conde was indicted for first-degree murder for the death of a Phoenix police officer as well as for fifteen other dangerous counts arising from the same incident. Following a jury trial, he was convicted of all sixteen counts.
The evidence at trial showed that he and an accomplice entered a bank armed with handguns which they pointed at customers and bank personnel. Conde leaped on the top of a counter and ordered a teller to place money in a plastic bag. He then ordered a customer to surrender her car keys so that he and his accomplice could escape. They obtained their getaway vehicle in the bank parking lot by taking it from its driver at gunpoint. At this juncture, the police officer, working off-duty as a bank security guard, opened fire on Conde and his accomplice. In the exchange of shots the officer was killed.
The robbers fled the scene in the stolen car. During the next half-hour, they commandeered two other vehicles at gunpoint. When police located Conde and ordered him to stop, he fired at them. He was wounded and was eventually taken into custody.
While hospitalized following his arrest, Conde was interrogated by police detective Saldate on two occasions. The first interrogation occurred at the intensive care unit of St. Joseph's Hospital. Saldate testified that Conde was then intubated and connected to intravenous lines when Saldate introduced himself and read him the Miranda warnings. Saldate testified that Conde was in pain and drifting in and out of consciousness. Occasionally, he had to shake him to get his attention. Conde made admissions regarding his participation in the bank robbery. These admissions were not used at trial.
A second interrogation occurred a week later in the detention ward of the Maricopa County Medical Center. Saldate testified that physically Conde "looked great" and had taken no medication prior to the interrogation. After Conde read Miranda warnings in English and Spanish from a police-issued card, Saldate interrogated him in English. Conde's statements were substantially the same as those made in the first interrogation, e.g., he indicated that he committed the robbery but denied shooting anyone. According to Saldate, Conde was polite and cooperative. Saldate testified that he used no force, threats or coercion to secure his responses.
The trial court found the second statement involuntary but ruled that it could be used for impeachment. The trial judge's ruling was premised upon the state's failure to promptly bring Conde before a magistrate for an initial appearance. 1 The court found that while the statements made in the first interrogation were involuntary and inadmissible, the admissions in the second interrogation could be used for impeachment because Conde validly waived his Miranda rights and had not been subjected to threats, physical abuse, promises or coercion.
At trial Conde waived the assistance of counsel. He defended himself assisted by advisory counsel. He argued that he was the victim of a police conspiracy to implicate him in the police officer's death. He claimed that adverse evidence had been counterfeited with the connivance of the prosecutor. He did not testify. After the guilty verdict, he was sentenced to life imprisonment for first-degree murder and to maximum sentences of 21 years on each count of armed robbery, 15 years on each count of aggravated assault, and 15 years each on the burglary and attempted armed robbery counts, all consecutive.
Conde raises the following issues on appeal:
1. Whether the trial court erred in determining that he was competent to stand trial and to conduct his own defense;
2. Whether the trial court erred in ruling that an involuntary post-arrest statement could be used to impeach him; and
3. Whether the trial court erred in aggravating his sentences for elements of the crimes charged.
Conde first contends for a new trial because, in his view, he was incompetent to waive counsel and was incompetent in conducting his trial defense. He also questions his own competency at the time of sentencing and asserts that his case should be remanded for resentencing. His contentions are based on the post-trial diagnosis of Dr. Donald Tatro, a clinical psychologist appointed to assist him after the verdicts. Tatro concluded that Conde was incompetent because he suffered from a paranoid delusion shown in his trial theory that he was the victim of a police conspiracy.
Conde's claim that his alleged delusion rendered him incompetent to conduct his own defense evokes State v. Fayle, 134 Ariz. 565, 658 P.2d 218 (App.1982), where Fayle was charged with the assault of a doctor whom he believed had wrongly denied him treatment for an imagined tubercular condition. Conde contends that his similar defense rendered him incompetent to waive counsel. The Fayle court, however, rejected the claim:
There is no doubt from this record that defendant knew he had a right to counsel, the role of counsel and that he appreciated the consequences of waiving counsel. Thus, although the defendant's defense was a product of his delusion, and, although his compulsion to present the defense may also have been a product of his delusion, the record clearly reveals that the defendant was in control of his faculties with regard to understanding his constitutional rights, and that he was competent to make a knowing and intelligent waiver of his right to counsel.
If Conde's defense was the product of a delusion--an assumption not accepted by the trial court--the validity of his waiver of counsel depends on the court's determination that he understood the constitutional rights he was waiving. Unlike Fayle, who had a pre-trial examination to determine his competency, Conde's competency under Ariz.R.Crim.P. Rule 11 was never at issue before trial. Although his counsel filed a motion to determine competency, citing without elaboration Conde's "bizarre behavior" and "total lack of understanding concerning his case," Dr. Michael Stumpf, the correctional psychiatrist who conducted a pre-screening examination, found no grounds to question his competency to assist in his own defense or to enter a guilty plea. The trial court found no reasonable grounds to appoint additional experts for further examination.
This decision was not an abuse of discretion. See State v. Johnson, 147 Ariz. 395, 398, 710 P.2d 1050, 1053 (1985). When Conde subsequently executed a valid waiver of counsel on two occasions, he was told of his right to the assistance of counsel, advised of his right to revoke his waiver and cautioned about the perils of self-representation. After executing the first waiver he was examined by another correctional psychiatrist, Dr. Leonardo Garcia-Bunuel, who specifically found him competent to represent himself provided he had access to advisory counsel.
Any doubt about Conde's competence to conduct his own defense is belied by his performance at trial, where he displayed precise understanding of the rules of procedure and evidence. He objected appropriately and was frequently sustained. His cross-examination addressed his theory of the case, emphasized prior inconsistent statements by witnesses, and even caused the state to rehabilitate witnesses on re-direct examination. On occasions when prosecution witnesses offered no damaging testimony, he did not cross-examine at all. Prior to trial, he secured a ruling barring the use of his post-arrest statement in the state's case-in-chief because of the state's delay in giving him a prompt initial appearance. His trial skills were lawyer-like. These factors support the trial court's determination that no further proceedings to determine competency were required.
Contrary to Conde's characterization of Tatro's testimony as uncontroverted, Tatro's opinion was contradicted by the prior opinions of Drs. Stumpf and Garcia; by Conde's demeanor and performance at trial; and by the state's cross-examination of Tatro which revealed that Tatro was unaware of Conde's post-arrest inculpatory statement. Tatro even admitted Conde's defense might be a fabrication rather than the product of a delusion. The trial court was not compelled to accept Tatro's opinion. It did not abuse its discretion in concluding that no reasonable grounds existed to question Conde's competency at the time of sentencing. See State v. Bishop, 162 Ariz. 103, 107, 781 P.2d 581, 585 (1989). (In assessing competency, "The trial judge is not required to accept or reject expert testimony in toto and may rely on particular views of one or more experts even though he or she may disagree with the expert's ultimate conclusion.")
Conde next contends that reversible error occurred when the trial court ruled that his statement to a Phoenix police detective was involuntary but could nonetheless be used to impeach him if he testified. The state responds (1) that he cannot raise the issue because he did not testify at trial and (2) that his statement was not involuntary because it was not the product of coercive police conduct.
For his part Conde contends that, notwithstanding the judge's findings, his second statement was indeed coerced because it was the product of the first hospital interrogation when he was in no condition to make a voluntary statement.
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