State v. Henry
| Decision Date | 07 August 1997 |
| Docket Number | No. CR-95-0098-AP,CR-95-0098-AP |
| Citation | 944 P.2d 57,189 Ariz. 542 |
| Parties | , 249 Ariz. Adv. Rep. 68 STATE of Arizona, Appellee. v. Graham Saunders HENRY, Appellant. |
| Court | Arizona Supreme Court |
On December 9, 1987, a jury convicted Graham Saunders Henry of first degree murder, kidnapping, theft, and robbery. The trial court sentenced him to death on the murder conviction and to terms of imprisonment for his other crimes. On direct appeal, we affirmed the non-capital convictions and sentences. With respect to the death sentence, however, we struck one aggravating factor and remanded for resentencing. State v. Henry, 176 Ariz. 569, 863 P.2d 861 (1993).
The trial judge thereafter conducted a new sentencing hearing and reimposed the death penalty. This automatic appeal followed. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3); A.R.S. § 13-4031; and Rule 31.2(b), Ariz.R.Crim.P.
The facts underlying defendant's convictions are recited in our earlier opinion. See Henry, 176 Ariz. at 573-75, 863 P.2d at 865-67. The focus here is limited to events that have transpired since that decision. On September 13, 1994, a hearing was held on a defense motion to change the sentencing judge, who had also presided over defendant's trial. The motion was ultimately denied. At the same proceeding, the hearing judge additionally rejected defendant's request to remove his attorney, Peter Rosales, and appoint new counsel.
Rosales subsequently left the public defender's office and was replaced by Gerald Gavin. After approximately five months, Gavin filed a motion to withdraw. The judge denied it, noting that defendant had already fired or forced to withdraw numerous qualified lawyers.
The resentencing hearing occurred two days later. Before any evidence was offered, defendant made a conditional motion to proceed in propria persona. When the court refused to accept his conditions, defendant expressly withdrew his request for self-representation. The hearing proceeded, and the judge resentenced him to death.
At the hearing conducted pursuant to Rule 10.1, Ariz.R.Crim.P., attorney Rosales put the trial judge on the stand as his only witness. Thereafter, the court asked the lawyer whether he wished to offer any further evidence, and the following exchange ensued:
Mr. Rosales: No, Your Honor.
Mr. Henry: Yes, he does. I wish to testify, Your Honor. Don't I have a legal right to testify?
The Court: Mr. Rosales, do you wish to call him?
Mr. Rosales: No, Your Honor.
The court then called a recess, reconvening only for closing arguments.
Defendant asserts that the hearing judge violated his constitutional right to testify and that what he had to say was "necessary to the court fully understanding the factual basis for the motion to recuse." He claims that, given the opportunity, he could have testified to the trial judge's "refusal--as well as his voice tone, facial expressions and general demeanor at that time and throughout the proceedings in this case--to view photographs." The photos supposedly would have shown the absence of defendant's footprints crossing a roadway at the crime scene, thereby undermining the state's claim that he was a major participant in the offense, see Tison v. Arizona, 481 U.S. 137, 158, 107 S.Ct. 1676, 1688, 95 L.Ed.2d 127 (1987), and supporting his charge of ineffective assistance of counsel.
The defense has failed to provide any support in the record for its underlying claims. No specific evidence of the alleged judicial misconduct is referenced in the transcript, nor has our independent review disclosed any. The photographs have not been identified either by exhibit number or in any other appropriate manner, nor are they attached to the briefs. We possess nothing more than appellate counsel's exceedingly general description of what the defendant "could" have said if permitted to testify. Under such circumstances, we must conclude A trial judge is presumed to be free from bias. State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284, 731 P.2d 1228 (1987). "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994); see also Perkins, 141 Ariz. at 286, 686 P.2d at 1256. The trial court's refusal to examine photographs, if true, would not alone demonstrate such profound antagonism. See State v. Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App.1996)(disagreements over rulings insufficient to support recusal). Additionally, defendant's subjective observations of the judge's tone of voice and expressions would add little, if anything, to his claim. See Liteky, 510 U.S. at 555, 114 S.Ct. at 1157 (). Thus, even assuming defendant's unsubstantiated claims are accurate and that he had a right to testify at this judicial disqualification proceeding, we find no prejudice. See Harrington v. California, 395 U.S. 250, 251-54, 89 S.Ct. 1726, 1727-28, 23 L.Ed.2d 284 (1969) (); State v. Canaday, 117 Ariz. 572, 574-75, 574 P.2d 60, 62-63 (App.1977) ().
[189 Ariz. 546] that the trial court's actions either did not occur as described or were justified. See State v. Lavers, 168 Ariz. 376, 399, 814 P.2d 333, 356 (1991).
Defendant filed a motion to substitute a new lawyer for Rosales, which was heard on the same day as the foregoing request to remove the trial judge. Following argument, the court denied it, finding that defendant was merely intent on usurping counsel's role as strategist for the defense. The judge then advised defendant that he had to choose between keeping his attorney and representing himself, but defendant refused to respond unless the court divulged whether it would grant him additional time to prepare. The judge declined to indicate in advance how he would treat this request and proceeded with the removal hearing as though defendant had not waived his right to a lawyer.
Defendant first argues that the judge should have granted his motion to substitute counsel because he was involved in an irreconcilable conflict with his attorney. Were it not for that conflict, defendant asserts, he would have called additional witnesses and introduced further evidence to show that he was not death eligible and to bolster the proffered mitigation. Although defendant identifies several of the witnesses, he fails to provide us with the substance of their testimony.
Accuseds have a Sixth Amendment right to representation by competent counsel. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993); Ariz. Const. art. II, § 24. Those afforded representation, however, are entitled neither to attorneys of their own choosing, State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124 (1974), nor to a meaningful relationship with them. Bible, 175 Ariz. at 591, 858 P.2d at 1194. When ruling on a motion to substitute counsel, courts should keep in mind "the rights and interest of the defendant ... tempered by exigencies of judicial economy." State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987). A proper analysis includes consideration of the following:
Whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of Id. at 486-87, 733 P.2d at 1069-70. Unlike other factors, the presence of a genuine irreconcilable conflict requires the appointment of new counsel. Bible, 175 Ariz. at 591, 858 P.2d at 1194.
[189 Ariz. 547] the defendant to change counsel; and quality of counsel.
According to defendant, Rosales rarely communicated with him prior to the removal hearing, failed to adequately prepare, and had been improperly influenced by one of his former attorneys. This, he asserts, created an irreconcilable conflict. We find that the argument lacks support in the record. There is ample evidence that the "conflict" in question amounted to nothing more than a disagreement over appropriate defense strategies. Although tactical decisions may raise concerns about attorney competence, such matters are more properly analyzed in post-conviction relief proceedings. See State v. Mata, 185 Ariz. 319, 335, 916 P.2d 1035, 1051 (1996); Ariz.R.Crim.P. 32.
Furthermore, this was not the first time defendant had expressed dissatisfaction with his lawyers. His proclivity to change counsel lends strong support to the judge's decision. See LaGrand, 152 Ariz. at 486, 733 P.2d at 1069. Before trial, the court granted two defense motions to substitute counsel, one motion for self-representation, and another to withdraw the waiver of defendant's right to an attorney. Between the time of his...
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