State v. Fisher

• Decision Date: 31 December 1986
• Docket Number: No. CR,CR
• Citation: 730 P.2d 825,152 Ariz. 116
• Parties: STATE of Arizona, Appellee, v. James Clifford FISHER, Appellant. 86-0073-PC.
• Court: Arizona Supreme Court

Page 825

730 P.2d 825

152 Ariz. 116

STATE of Arizona, Appellee, v. James Clifford FISHER, Appellant.

No. CR 86-0073-PC.

Supreme Court of Arizona, In Banc.

Dec. 31, 1986.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Gary A. Fadell, Phoenix, for appellee.

J. Douglas McVay, Phoenix, for appellant.

CAMERON, Justice.

I. Jurisdiction

Defendant, James C. Fisher, was convicted of first-degree murder of a seventy-three-year-old woman, Marguerite Bailey, A.R.S. § 13-1105, and was sentenced to death. Defendant's conviction and sentence were affirmed on appeal. State v. Fisher, 141 Ariz. 227, 686 P.2d 750, cert. denied, 469 U.S. 1066, 105 S.Ct. 548, 83 L.Ed.2d 436 (1984). Defendant sought post-conviction relief. He petitions this court for review of the denial of his request for post-conviction relief. See 17 A.R.S. Rules of Crim.Proc., Rule 32. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3), A.R.S. § 13-4031 and 17 A.R.S. Rules of Crim.Proc., Rule 32.9.

II. Issues

We must answer the following issues:

1) Was counsel's performance at trial ineffective?

2) Was counsel's performance at the motion for new trial ineffective?

III. Facts and Procedural Background

At the time of the homicide, defendant and his wife, Ann, lived in and managed a Phoenix apartment complex owned by the victim, Marguerite Bailey. Bailey's body was discovered in an alley early Sunday morning, 13 September 1981. Pursuing their investigation, the police entered the defendant's abandoned apartment where they discovered evidence of the murder.

Both defendant and Ann were arrested on 17 September 1981, at defendant's mother's home in Davenport, Iowa. As the result of police interrogation, Ann made a statement inculpating defendant in Bailey's murder. Once the police confronted defendant with Ann's statement, he confessed to the murder, reiterating Ann's earlier statements.

At trial, defendant's main defense was that his wife, Ann, was the guilty party and that he had confessed to protect her. He took the stand on his own behalf and so testified. A subsidiary defense was that he was so drunk that he blacked out the afternoon of the murder and did not know what happened.

Ann, in the meantime, entered into a plea agreement covering her potential liability for this homicide/robbery. The agreement permitted her to plead guilty to hindering prosecution, a class 5 felony, if certain conditions were met. One condition provided that " 'if she is called as a witness in the trial of James Fisher and required to testify, her testimony will not vary substantially in relevant areas to statements previously given * * *.' " State v. Fisher, 141 Ariz. at 244, 686 P.2d at 767 (1984).

Efforts at defendant's trial to obtain the testimony of Ann were unsuccessful as she followed her counsel's advice to claim her fifth amendment privilege and refused to testify about the murder. The defense unsuccessfully attempted to introduce letters written by Ann to defendant while he was in jail which declared his innocence. Subsequent to Ann's appearance, the trial judge reversed his earlier ruling and admitted Ann's plea agreement into evidence. Once the agreement was admitted into evidence, Ann was not recalled as a witness. The jury found defendant guilty.

After defendant's trial but before sentencing, Ann pled guilty to hindering prosecution and received a sentence of 2.5 years. Shortly thereafter, she contacted defendant's attorney, Thornton W. Price III, and confessed that she, rather than defendant, had killed Bailey. Arguing that a transcript of Ann's confession and her sworn affidavit were newly discovered evidence, Price moved for a new trial.

At the hearing on the motion for new trial, Price did not have Ann testify nor did he introduce any additional written materials from Ann at that time. Neither did he call Betty Fisher, defendant's former wife, although her testimony would have indicated that Ann's confession was consistent with prior statements. The trial court denied the motion for new trial, holding that the evidence was not newly discovered and was not credible.

At sentencing, the trial judge found two aggravating circumstances: 1) that defendant killed Bailey in expectation of receipt of something of pecuniary value, A.R.S. § 13-703(F)(5); and 2) that Bailey was killed in an especially heinous and depraved manner, A.R.S. § 13-703(F)(6). The court found no mitigating circumstances sufficiently substantial to call for leniency and imposed the death penalty.

On appeal, this court affirmed the conviction and sentence, State v. Fisher, 141 Ariz. at 253, 686 P.2d at 776, and denied a motion for reconsideration.

Six months later, Fisher filed a propria persona petition for post-conviction relief pursuant to Rule 32 in Maricopa County Superior Court claiming, among other things, ineffective assistance of counsel. At the Rule 32 hearing, defendant and his former trial counsel, Price, testified in person.

IV. Ineffective Assistance of Counsel at Trial

In support of his claim of ineffective assistance of counsel at trial, defendant testified that he had wanted to take a polygraph test, even though he knew it was inadmissible, but Price had refused. Additionally, defendant claimed that a handwriting analysis should have been done on the map found in his apartment showing the location where the victim's car was found; also, the map should have been dusted and sprayed for prints. Defendant recalled asking Price to obtain a crime-scene reconstruction expert to show that the hammer blows to Bailey's head were struck by a right-handed person, such as Ann. Defendant is left-handed.

Defendant also testified that his lawyer was aware of his earlier mental problems, his possible temporal lobe epilepsy, and alcohol problems, yet did not utilize this evidence at the sentencing phase of the case. Defendant accused Price of failing to follow up on evidence of Ann's mental problems and propensities for violence.

Price, a certified criminal law specialist, testified at length as to his strategy in the case; he and defendant had discussed that strategy extensively. Price had no recollection of the polygraph issue, but would not have recommended it in any event. Concerning the handwriting and fingerprints on the map, Price felt that an analysis would not have proven anything and, that since the state had not offered any fingerprint evidence, he preferred not to stir up possible trouble.

Price saved the right-handed vs. left-handed theory for his closing argument, thinking he could argue persuasively from the location of the furniture and blood stains at the murder scene and from the placement of the blows to Bailey's head. Furthermore, to his knowledge, the state had not pursued this theory. Price believed that asking the court for funds for a crime-scene reconstruction would have required an explanation of the theory, thereby losing the element of surprise. Plus, experts might have proven the theory wrong. Price admitted that he had not thought of the theory until after the start of the trial, although perhaps he could have obtained a continuance. Additionally, Price admitted that he was not aware that he could have obtained funds ex parte to hire a crime-scene reconstruction expert or to have a polygraph test done.

Price acknowledged that he and defendant had discussed extensively Fisher's mental problems, including the alcoholism and temporal lobe epilepsy. Price was fully aware of defendant's hospitalizations and medical care. He obtained the records and provided them to two local psychiatrists. The information was made available to the jury through psychiatric testimony and defendant's own testimony. There never was any firm medical diagnosis of temporal lobe epilepsy that could have been presented.

To determine whether trial counsel was ineffective, a two-pronged test is applied: 1) was counsel's performance deficient? State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227, cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); and 2) was defendant prejudiced by his attorney's deficient performance? State v. Lee, 142 Ariz. 210, 213-14, 689 P.2d 153, 156-57 (1984). This test complies with the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The first prong requires the defendant to specify the acts or omissions of counsel that allegedly constitute ineffective assistance. The evidence must overcome a presumption that the challenged action was sound trial strategy under the circumstances. Id. at 689, 104 S.Ct. at 2066, 80 L.Ed.2d at 694-95. After examining all the circumstances existing at the time of counsel's actions, we will find deficient representation only where counsel's performance falls below objective standards of reasonable representation measured by prevailing professional norms. Nash, 143 Ariz. at 397, 694 P.2d at 227, citing Strickland, 466 U.S. at 688, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 693.

We disagree with defendant's contention that counsel's performance at trial was deficient. The defense strategy, developed by Price and defendant together, of portraying Ann as the guilty party was difficult given Ann's posture in the case and defendant's earlier confession. Nevertheless, Price acted reasonably in presenting the defense: eliciting testimony on Ann's violent character, defendant's state of inebriation and the location of furniture and blood stains at the murder scene. Price tried to confront Ann with her plea agreement, hoping to persuade the jury that her refusal to testify was motivated by fear of losing the agreement's benefits. Furthermore, in his closing argument, Price argued the defense of Ann's guilt to the jury. Price's performance at trial as measured by prevailing professional norms did not fall below objective standards of reasonable representation. We hold that counsel's representation at trial was not ineffective.

V. Ineffective...