State v. Garcia

• Decision Date: 05 October 1982
• Docket Number: No. 5385,5385
• Citation: 133 Ariz. 522,652 P.2d 1045
• Parties: STATE of Arizona, Appellee, v. Frank Nunez GARCIA, aka Frank Nunez Contreras, Appellant.
• Court: Arizona Supreme Court

Page 1045

652 P.2d 1045

133 Ariz. 522

STATE of Arizona, Appellee, v. Frank Nunez GARCIA, aka Frank Nunez Contreras, Appellant.

No. 5385.

Supreme Court of Arizona, In Banc.

Oct. 5, 1982.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Clifford C. Wamacks, Asst. Attys. Gen., Phoenix, for appellee.

James Kemper, Phoenix, for appellant.

HAYS, Justice.

Following a jury trial, appellant Frank Nunez Garcia was convicted of first degree murder and sentenced to life imprisonment without possibility of parole for 25 years. Taking jurisdiction pursuant to A.R.S. § 13-4031, we affirm the judgment of conviction and the sentence.

Garcia was convicted of the murder of Ernest Sanchez. Near midnight on June 7, 1981, Sanchez, somewhat inebriated, was walking to a friend's home after a Phoenix police officer had told him not to drive his car. En route he was struck repeatedly on the head with a piece of iron water pipe. Sanchez was found by the same officer in a park in the vicinity of 18th Street and Van Buren and taken to Maricopa County Hospital where he died a few hours later. Money which the officer had earlier seen in Sanchez's wallet was gone.

The questions we consider are:

1. Did the trial judge err in issuing a bench warrant to compel Steve Henderson's testimony at Garcia's trial?

2. Did the trial judge abuse his discretion in ordering appellant to be fingerprinted during the trial?

3. Was appellant's trial counsel ineffective?

4. Was it reversible error to admit allegedly hearsay evidence over defense counsel's objection?

Appellant claims the trial court erred and prejudiced him by allowing the state to produce its chief witness in court by means of a bench warrant. He argues the procedure used was illegal and its disturbing effect on the witness, a 15-year-old boy, makes the boy's truthfulness suspect.

We see no merit in this position and appellant cites no authority in support of it. We note that the record indicates that a bench warrant issued but was never executed. It appears to us that the procedure used by the state was completely appropriate. A.R.S. § 12-2211(B) authorizes the issuance of an arrest warrant for a witness who, summoned, fails to appear. It is a long-standing principle that it is essential that courts be able to compel the appearance and testimony of witnesses. Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Even assuming an impropriety in the procedure, we do not see how appellant has standing to raise the question here. If any liberty rights were violated, they were those of Steve Henderson, the prosecution witness, not those of Frank Garcia.

Garcia says Steve Henderson's compelled presence prejudiced him because the circumstances surrounding his testimony might have impugned credibility. The credibility of the witness was for the jury to decide and their determination will not normally be disturbed on appeal. State v. Pike, 113 Ariz. 511, 557 P.2d 1068 (1976). There was no error in the production and presentation of Steve Henderson's testimony.

Appellant urges that the trial judge erred in granting the state's oral motion to order appellant to give fingerprint exemplars during the trial. He cites 17 A.R.S. Rules of Criminal Procedure, rule 15.2(a)(3), and State v. Asbury, 124 Ariz. 170, 602 P.2d 838 (App.1979), as requiring the state to make a written request for the fingerprints. These authorities concern pretrial discovery and are not applicable here. The fingerprints were sought as identification evidence at the trial, had probative value for that purpose and were, therefore, admissible. State v. Tamplin, 126 Ariz. 175, 613 P.2d 839 (App.1980).

The order compelling the fingerprints was not error.

Garcia contends he was not given effective assistance of counsel. In Arizona we judge counsel's performance by determining whether it was so ineffective that the proceedings were reduced to a farce, sham or mockery of justice. State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979). We have adhered to this standard despite the urging of some that we adopt the "reasonable effective assistance of counsel" test, see Williams, supra, but here, judging by either standard, we do not find ineffective assistance of counsel. Garcia cites two shortcomings of his trial lawyer's performance. First, he asserts that the lawyer's cross-examination of Steve Henderson, the state's chief witness, resulted in an in-court identification of defendant as the killer. The prosecutor, on direct examination, had attempted to elicit the identification from Steve, but Steve seemed nervous and would not identify Garcia. On cross-examination, Garcia's attorney apparently thought there was a good chance Steve would say Garcia was not the killer. This did not happen, though, and on redirect, the prosecutor finally convinced Steve to say it was Garcia. Steve said he had hesitated since Garcia looked different because his hair had grown.

The pipe found at the crime scene bore fingerprints matching Garcia's. This evidence was already before the jury, so counsel could legitimately have decided there was little advantage to be lost and potentially great advantage to be gained in attempting to have Steve disavow recognition of Garcia.

Second, trial counsel did not move to strike the testimony of another state's witness for lack of foundation. Steve Henderson's friend, Billy Thompson, testified he also had seen Garcia commit the murder, but he later admitted that, while he had seen the incident, he had been too far away to see who killed Sanchez. Billy said Steve had told him it was Garcia. By not moving to strike Billy's testimony, defense counsel...