State v. LaGrand, 6456

Decision Date30 January 1987
Docket NumberNo. 6456,6456
Citation733 P.2d 1066,152 Ariz. 483
PartiesSTATE of Arizona, Appellee, v. Karl Hinze LaGRAND, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer, III, Chief Counsel, Criminal Div., Diane M. Ramsey, Gary A. Fadell, Asst. Attys. Gen., Phoenix, for appellee.

Karp, Stolkin & Weiss, P.C. by Stephen M. Weiss, Elizabeth F. Claiborne, Tucson, for appellant.

GORDON, Chief Justice.

On February 17, 1984, appellant Karl LaGrand and his half-brother, Walter LaGrand, were convicted by a jury of murder in the first degree; attempted murder in the first degree; attempted armed robbery; and two counts of kidnapping. The brothers were sentenced to death for the first degree murder and to concurrent terms of years for the other charges. Both brothers challenge their convictions and sentences; however, their appeals have not been consolidated and we address issues raised by each in separate opinions. We have jurisdiction to hear Karl LaGrand's appeal pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033. Facts of the case are set out in State v. LaGrand (Walter), 153 Ariz. 21, 734 P.2d 563 (1987). Additional facts necessary to resolve Karl's claims are adduced below.


Although Karl and Walter did not consolidate their cases for appeal, Karl adopts by reference arguments II-V raised by his brother: refusal to give a lesser included offense instruction regarding felony murder; admission of gruesome photographs; excuse for cause of a juror with scruples against the death penalty; and denial of a change of venue. These arguments were explored at length and rejected in State v. LaGrand (Walter), supra, and for identical reasons are rejected here. Appellant does, however, raise additional arguments concerning (1) ineffective assistance of counsel, (2) failure to grant substitution of counsel, (3) failure to give an intoxication instruction, (4) improper waiver of a jury regarding the allegation of prior convictions, and (5) problems with the constitutionality and application of the death penalty. Each is analyzed below.


Appellant argues that trial counsel was ineffective before, during and after trial. The test for ineffectiveness of counsel is now well established: the defendant must prove that counsel's representation was not reasonable under all the circumstances, i.e., that it was deficient, and that counsel's deficient performance prejudiced the defendant. State v. Rossi, 146 Ariz. 359, 364, 706 P.2d 371, 376 (1985); see 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). When deciding ineffectiveness of assistance claims we need not analyze the prongs of the test in any particular order. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). The defendant must prove both elements of ineffectiveness; lack of proof on either element will defeat the claim. Id.

Because Arizona's test for ineffectiveness is modeled after the United States Supreme Court's test fashioned in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), see, e.g., State v. Salazar, 146 Ariz. at 541, 707 P.2d at 945, Strickland is particularly helpful in defining the minimal competence level required by counsel. Proof of deficient performance "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. We must determine "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. at 686, 104 S.Ct. at 2064.


Appellant first argues that trial counsel's failure to pursue a Rule 11 mental incompetency motion prior to trial was deficient. However, counsel decided against pursuing a Rule 11 hearing only after interviewing Karl's psychologist three times. Also, not pursuing an insanity defense precluded opening Karl's juvenile record to inspection and exposing "all prior relevant conduct" from his past to scrutiny. State v. Rodriguez, 126 Ariz. 28, 31, 612 P.2d 484, 487 (1980). Further, no evidence of M'Naughten insanity existed. Counsel's decision not to pursue an insanity defense was not unreasonable.


Appellant also asserts that counsel's trial tactics were deficient. Appellant points out that his counsel waived an opening statement, cross-examined few witnesses, and failed to actively participate in the trial. Trial counsel must be more than a neutral observer; he must subject the state's case to meaningful adversarial testing. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657 (1984); State v. Nash, 143 Ariz. at 399, 694 P.2d at 229. When counsel's acts and decisions approach those of a neutral trial observer, we will presume prejudice. Id.

Although trial counsel here kept an exceedingly low profile, we cannot say that his performance was so deficient as to compromise the adversarial nature of the trial. Counsel's only realistic hope was to prevent a finding of first degree murder, and to that end he argued impulsivity in his closing remarks and during sentencing. Failure to cross-examine most witnesses was not deficient because co-defendant's counsel did an excellent job of cross-examining them. Counsel did cross-examine Dawn Lopez, and establish that Karl was kicked. While we normally expect to see more vigorous representation from counsel, particularly in a death penalty case, we cannot say that counsel's trial performance was ineffective.


Finally, appellant argues that counsel was ineffective at the aggravation-mitigation hearing by failing to present all available mitigating evidence. The gravamen of appellant's complaint is that counsel failed to adequately question a defense psychiatrist concerning Karl's propensity to react impulsively under stress, 1 and did not call Karl's psychologist as a witness, choosing instead merely to introduce his report. Counsel did, however, question the psychiatrist concerning premeditation and extensively developed the depressing nature of appellant's background.

Counsel could have presented the appellant's case more fully and skillfully. Nonetheless, the test for counsel's ineffectiveness is not whether a better job could have been done, but whether his performance fell below the minimum threshold of professional skill established by case law. We hold that counsel's representation of appellant was not ineffective.


In December 1983, appellant filed a pro se motion to remove his counsel. No hearing was held on this motion until January 30, 1984, the day before trial, at which time appellant's counsel moved to withdraw as attorney of record. The judge inquired into reasons behind the "Conflict of Interest Between Attorney and Client" asserted by appellant. Appellant complained that his attorney had visited him only three or four times prior to trial, he believed that his attorney was not prepared for trial because he had not told his attorney everything he felt his attorney should know, he had not received copies of all motions filed by his attorney, and his attorney told him that "[he] was going to get found guilty no matter what" and "[he] can't get no plea bargain because of public pressure." The proposed substitution of counsel was denied.

A defendant is constitutionally entitled to representation by counsel or to proceed without counsel if he so chooses. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975); State v. DeNistor, 143 Ariz. 407, 412, 694 P.2d 237, 242 (1985); Ariz. Const. art. 2, § 24; see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, a defendant is not entitled to any particular counsel, only to competent counsel. State v. DeLuna, 110 Ariz. 497, 500, 520 P.2d 1121, 1124 (1974). Thus a request for new counsel should be examined with the rights and interest of the defendant in mind tempered by exigencies of judicial economy. We have identified several factors to be considered by the trial judge: 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 the defendant to change counsel; and quality of counsel. See State v. Lee, 142 Ariz. 210, 220, 689 P.2d 153, 163 (1984); State v. DeNistor, 143 Ariz. at 413, 694 P.2d at 243. The trial court's decision will not be disturbed absent a clear abuse of discretion. State v. Lee, 142 Ariz. at 220, 689 P.2d at 163.

The trial court did not abuse its discretion. The trial had already been postponed numerous times and by the time of the motion nearly two years had passed. Substitution of counsel would have caused yet more delay. In addition, counsel had already been changed once. No real conflict between the appellant and counsel is discernible from the record; it simply appears that appellant would have been happier with other counsel. Finally, the judge commended counsel for "working very energetically and diligently on his client's behalf." The motion was properly denied.


Appellant contends that evidence was sufficient to mandate giving an intoxication instruction to the jury, which could have negated the culpable mental state necessary for premeditated first degree murder. A party is entitled to an instruction on any theory reasonably supported by evidence. State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). An intoxication instruction should be given only when the record supports such an instruction. State v. Cruz-Mata, 138 Ariz. 370, 373-74, 674 P.2d 1368, 1371-72 (1983).

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