State v. Gerlaugh

• Decision Date: 23 April 1985
• Docket Number: No. 5216-2-PC,5216-2-PC
• Citation: 698 P.2d 694,144 Ariz. 449
• Parties: STATE of Arizona, Respondent, v. Darick Leonard GERLAUGH, Petitioner.
• Court: Arizona Supreme Court

Page 694

698 P.2d 694

144 Ariz. 449

STATE of Arizona, Respondent, v. Darick Leonard GERLAUGH, Petitioner.

No. 5216-2-PC.

Supreme Court of Arizona, In Banc.

April 23, 1985.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Crane McClennen Asst. Attys. Gen., Phoenix, for respondent.

John Foreman, Cunningham, Tiffany & Hoffmann, P.A. and James Kemper, Phoenix, for petitioner.

HAYS, Justice.

After a joint trial, petitioner Darrick Leonard Gerlaugh and codefendant Joseph Albert Encinas (State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982)), were convicted of first degree murder, A.R.S. § 13-1105, armed robbery, A.R.S. § 13-1904, and kidnapping, A.R.S. § 13-1304. Petitioner received concurrent sentences of 21 years on the armed robbery and kidnapping offenses. These sentences were to run consecutively with a 35-year to life sentence for probation violation. For the murder, petitioner was sentenced to death. Petitioner's convictions and sentences were affirmed on appeal. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982), supplemental opinion, 135 Ariz. 89, 659 P.2d 642 (1983). Petitioner sought post-conviction relief. See 17 A.R.S. Rules of Criminal Procedure, rule 32. The trial judge presided over the rule-32 hearing, pursuant to our order in State ex rel. Corbin v. Superior Court, 138 Ariz. 500, 675 P.2d 1319 (1984). After an evidentiary hearing, the trial court denied petitioner's rule-32 petition. We have jurisdiction. Ariz. Const. art. 6, § 5(3); A.R.S. § 13-4031; 17 A.R.S. Rules of Criminal Procedure, rule 32.9(c). We affirm. We address the following issues related to whether petitioner was denied effective assistance of counsel at his sentencing:

1. Should the modification of the Watson standard of "minimal competence" in representation announced in State v. Nash be applied retroactively?

2. What is the proper test for ineffective assistance of counsel in capital sentencing proceedings?

3. Did trial counsel render so little assistance that prejudice must be presumed?

4. Did the trial court apply the wrong standard of review in denying petitioner's rule-32 petition?

5. Does the trial court's finding, that petitioner failed to establish ineffective assistance of counsel at the rule-32 hearing, have significant probative value?

6. Did trial counsel render ineffective assistance by failure to argue against one aggravating circumstance?

7. Did trial counsel render ineffective assistance by failure to present additional evidence of--and/or argue for--the alleged mitigating circumstances implicated by petitioner's

(a) impaired mental condition?

(b) age?

(c) intoxication?

(d) good character?

(e) greater punishment in contrast to his codefendant's?

(f) cooperation with the police?

8. Did trial counsel acquiesce in the state's recommendation of the death penalty?

FACTS

On the evening of January 24, 1980, petitioner and codefendants Joseph Encinas and James Matthew Leisure (Memorandum Decisions Nos. 5217, 5246 & 5264 (consolidated), filed September 13, 1982), had a few drinks at the home of Shirley Jones, a friend, who lived in Chandler. They decided to hitchhike to Phoenix and rob whomever offered them a ride. Petitioner was the only armed member of the trio. At about 11:30 p.m. Scott Schwartz, the victim, was driving in the vicinity. Schwartz had an injured leg and walked with the aid of a leg brace and crutches.

Schwartz picked up the three defendants. Soon afterwards, petitioner pointed a gun at Schwartz and forced him to drive to a deserted road near a canal on the outskirts of Mesa. There, the three men forced the victim out of his car. Petitioner pointed the gun at Schwartz and demanded money. Schwartz grabbed the gun from petitioner. While attempting to escape, the victim pointed the gun at Leisure and pulled the trigger. The gun did not fire. "You fucked up" petitioner exclaimed, "There's no bullets in the gun." The three men knocked Schwartz to the ground, where they beat and kicked him for ten to fifteen minutes. Petitioner then announced that they would have to kill Schwartz to prevent him from identifying them. Petitioner ordered Encinas and Leisure to hold Schwartz on the road so he could run the victim over with the car. The victim succeeded in dodging the car several times by diving into an adjoining canal. Petitioner finally ran over Schwartz with the victim's Lincoln Continental and felt the impact of the victim's body with the car. Petitioner ran over the victim two more times and struck the victim's head with the car bumper at least one time. At one point, petitioner positioned the car's left rear wheel on top of Schwartz and floored the accelerator. Although badly hurt, the victim was still alive and was writhing in pain on the roadside. He began to plead with his assailants to tell him the reason for their attack. Petitioner took a screwdriver from the rear of the car and stabbed the victim in the head, neck and shoulders at least twenty times. Leisure also stabbed the victim ten to twenty times.

A pathologist testified that these various assaults caused several injuries, any of which would have been fatal. The victim suffered numerous fractures, puncture wounds and internal injuries from his head to his midsection. His entire body was covered with bruises and abrasions. The three men dragged Schwartz's body off the road to an adjoining field and covered it with alfalfa. Petitioner kept all of the money taken from the victim.

The three men returned to the road and drove away in Schwartz's car. When the car broke down, they resumed hitchhiking. They were picked up by Harry Roche in his pickup truck at about 2:00 a.m. Petitioner leveled the gun at Roche and forced him to make an apparently random series of turns. Finally, petitioner ordered Roche to pull off to the side of the road. Roche at first refused and complained that the roadside was too muddy at that particular point to stop. When petitioner pointed the gun at his head, however, Roche stopped the truck. Petitioner, Encinas, and Leisure got out of the truck. Roche quickly put the truck in gear and sped away. Petitioner later admitted that he intended to rob Roche. Several days later, Encinas related these events to a friend who then went to the police. The three men were arrested; all of them confessed. At his interview with the police, petitioner expressed no remorse about killing Schwartz. When asked how he felt after killing the victim, he replied, "How do you feel when you kill [wild] game?" In sentencing petitioner to death, the trial judge declared that, "This offense absolutely demonstrates this defendant's total lack of regard for human life or human suffering."

I. THE APPLICATION OF THE NEWLY MODIFIED WATSON STANDARD TO POST-CONVICTION CASES

Petitioner contends that he was denied effective assistance of counsel. The burden of proof is on the defendant to show ineffective assistance of counsel by a preponderance of the evidence. State v. Prince, 142 Ariz. 256, 260, 689 P.2d 515, 519 (1984). Traditionally, proving ineffective assistance of counsel in Arizona required a showing that the proceedings were reduced to a farce, sham or mockery of justice by counsel's performance. See State v. Garcia, 133 Ariz. 522, 652 P.2d 1045 (1982). More recently, a two-pronged test for ineffective assistance of counsel has been employed. The first prong of this test originally required minimal competence in representation. State v. Watson, 134 Ariz. 1, 4-5, 653 P.2d 351, 354-55 (1982). Following Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we have recently modified the first prong to require "deficient representation." State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). There is deficient representation only if, after examining all the circumstances existing at the time of the alleged act of ineffective assistance, we conclude that counsel's actions fell below objective standards of reasonable representation measured by prevailing professional norms. Id. The defendant must specify the acts or omissions allegedly constituting ineffective assistance. Strickland v. Washington, supra, 466 U.S. at ----, 104 S.Ct. at 2066, 80 L.Ed.2d at 694. The accused must also overcome a "strong" presumption that the challenged action was sound trial strategy under the circumstances. State v. Nash, supra, 143 Ariz. at 398, 694 P.2d at 228; Strickland v. Washington, supra, 466 U.S. at ----, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694. Disagreements in trial strategy will not support a claim of ineffective assistance so long as the challenged conduct has some reasoned basis. State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984); State v. Prince, supra, 142 Ariz. at 260, 689 P.2d at 519.

The second prong of our ineffective assistance of counsel test requires that there be a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984) (quoting Strickland v. Washington, supra, 466 U.S. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). In Lee, we defined a "reasonable probability" as less than "more likely than not but more than a mere possibility." State v. Lee, supra. According to Strickland, supra, this is a sufficient probability of a different result that it indicates serious breakdown in the adversarial process which, in turn, undermines our confidence in the actual outcome of the case. Strickland, supra, 466 U.S. at ----, 104 S.Ct. at 2069-70, 80 L.Ed.2d at 699-700.

We must also discuss the application of these standards. We have held that the first prong, the Watson standard of "minimal competence," is to be applied prospectively to cases tried or pending on appeal after the effective date of the Watson decision (October 18, 1982). See State v. Nunez, 135 Ariz. 257, 660 P.2d 858 (1983). In Nash, we did not expressly announce whether this modified standard was to be...