State v. Lee

Decision Date25 September 1984
Docket NumberNo. 6107-PR,6107-PR
Citation142 Ariz. 210,689 P.2d 153
PartiesSTATE of Arizona, Appellee-Respondent, v. Billy Don LEE, Appellant-Petitioner.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Diane M. Ramsey and Linda A. Akers, Asst. Attys. Gen., Thomas E. Collins, Maricopa County Atty., Hugo Zettler, Deputy County Atty., Phoenix, for appellee-respondent.

J. Douglas McVay, Phoenix, for appellant-petitioner.

GORDON, Vice Chief Justice:

For his participation in the robbery of a Village Inn Pizza restaurant in Mesa, Arizona, appellant-respondent Billy Don Lee was convicted on May 11, 1981 of aggravated robbery in violation of A.R.S. § 13-1903(A) and sentenced to twenty years imprisonment. The primary question on appeal is whether trial counsel's acquiescence in appellant's demand that he call witnesses whose veracity and credibility counsel strongly doubted and the concomitant waiver of closing argument constitute ineffective assistance of counsel. A review of the facts and history of this case are provided in State v. Lee, 142 Ariz. 227, 689 P.2d 170 (App.1983). Only those facts necessary for disposition of the questions before us will be repeated here.

In pre-trial discussions between appellant and trial counsel, 1 appellant insisted that counsel call Anthony Scott and Willie Hubbard. Both men had previously entered plea agreements with the state regarding the robbery; both had been sentenced. Based on his personal investigation of the case and interviews with Scott and Hubbard, counsel believed they would, if called to testify, present perjurious testimony. He also believed appellant's case would be stronger without their testimonies. Counsel tried to convince appellant that it would be better not to call them. Appellant was adamant and counsel acceded to appellant's demand. Upon calling Scott, counsel asked basic introductory questions to establish Scott's identity and to establish that he had personal knowledge of the robbery at issue. He then asked, "Will you tell the jury exactly what happened that night [of the robbery], please?" Scott provided a narrative account of the events he considered relevant; he was rigorously cross-examined and excused. The questioning of Hubbard followed the same course.

At that point, the court recessed and counsel made a record in chambers before the trial judge and court reporter. Counsel said he believed the two witnesses had perjured themselves. He explained that he had called them, notwithstanding his pre-trial belief that they would perjure themselves, because his client had insisted that he do so. Counsel stated:

"It was my conclusion after all this mental wrestling [on my ethical obligation under the circumstances,] that my belief that the testimony was perjured was not dispositive and that it was not my place to make that decision in my own head and therefore deprive the defendant of his constitutional right to present testimony in his own behalf."

He also informed the court that he might waive closing argument because he did not know if he could "get up in front of the jury and make an argument based on what I am positive in my own mind is perjured testimony."

At the appropriate time, counsel waived closing argument. Appellant was found guilty and, after admitting two prior felonies, sentenced to the maximum term of twenty years. Counsel's motion to withdraw was granted, new counsel was appointed, and appellant sought post-conviction relief under Ariz.R.Crim.P. 32. That relief was denied. Appellant timely filed notice of appeal from both judgments. The matters were consolidated for decision.

Appellant claimed he received ineffective assistance of counsel because trial counsel had called witnesses trial counsel believed would be harmful to appellant's case, because trial counsel had waived closing argument, and because trial counsel's in chambers remarks prejudiced the trial court against him such that he received a more severe sentence than he would otherwise have received. The Court of Appeals found trial counsel's decision to call the two witnesses improper, but declined to consider relief on that ground. It did, however, grant relief on the ground that counsel's decision to waive closing argument constituted ineffective assistance. The conviction was reversed and the matter remanded for a new trial.

The state petitioned for review. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Crim.P. 31.19.


In May of this year, the United States Supreme Court set forth the standard to be applied in cases in federal court involving allegations of ineffective assistance of counsel based on " 'actual ineffectiveness' of counsel's assistance in a case going to trial." Strickland v. Washington, 466 U.S. ----, ----, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674, 691 (1984). The Court said:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."

Id. at ----, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982), this Court rejected the "farce, sham or mockery of justice" standard for counsel's ineffectiveness and adopted the "minimal competence" standard. We said:

"Failure by an attorney to pursue [matters generally agreed upon as constituting proper defense practice in criminal cases] would be considered representation which falls below the minimum standards of professional competence required of defense counsel."

Id. at 5, 653 P.2d at 355. This inquiry comports with the first component of the Strickland test and remains the law of this state. We then recognized, as did the Supreme Court in Strickland, that "not all errors by counsel are harmful to the defendant, and reversal is not required for harmless error," id. We held that

"[o]nce the defendant [shows counsel's ineffectiveness] by a preponderance of the evidence, the state bears the burden of showing that the failure, if any, was harmless to the defendant beyond a reasonable doubt under the circumstances of the case."

Id. It is this second requirement, which shifts the burden of proof to the state to show that the error was not so prejudicial as to require reversal, that is at odds with Strickland. Though not constitutionally compelled to do so, we have reconsidered the test set forth in Watson; because an appellant is in a better position than the state to know what transpired between trial counsel and appellant and because appellate counsel is in a better position than the state to determine how errors of trial counsel prejudiced his or her client, we believe the standard set forth in Strickland is the better one. We hold today that a criminal defendant is entitled to have his or her conviction reversed if he or she shows, first, that under the circumstances and in light of prevailing professional norms counsel showed less than minimal competence in representing the criminal defendant and, second, that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A "reasonable probability" is less than "more likely than not" but more than a mere possibility. To the extent that Watson is inconsistent with this opinion, it is overruled.


Turning to the instant case we ask first whether, under the circumstances, trial counsel showed at least minimal competence in representing appellant. We find that in acceding to appellant's demand that he call Scott and Hubbard and in failing to present a closing argument, trial counsel provided less than minimally competent representation.


There is no support in law for counsel's belief that defendant's sixth amendment right to present a defense included the right to determine what witnesses to call at trial. In acceding to his client's demand that he call two witnesses notwithstanding his professional judgment that it would be both unethical and detrimental to his client's case to do so, defense counsel did what a minimally competent defense counsel would not have done.

It is important to note that this is not a case in which we are asked to determine if counsel was ineffective because he made a tactical decision not to call a proffered witness. See Vess v. Peyton, 352 F.2d 325 (4th Cir.1965), cert. denied, 383 U.S. 953, 86 S.Ct. 1215, 16 L.Ed.2d 214 (1966); State v. Workman, 123 Ariz. 501, 600 P.2d 1133 (App.1979). Disagreements in trial tactics will not support a claim of ineffectiveness provided the conduct has some reasoned basis. Watson, supra. Nor is this a case in which we are asked to evaluate trial counsel's decision to call a criminal defendant when he or she knows the client, if permitted to testify, will commit perjury. 2 The instant case is unique in that it presents a challenge to an attorney's acquiescence in his client's demand that he call two witnesses notwithstanding the attorney's professional judgment that it would be unethical and detrimental to his or her client to do so. Though the question is one of first impression, we find that the answer is clear.

In keeping with the rights vested in an accused under the Constitution, certain basic decisions have come to belong to an accused. The ultimate decisions on whether to plead guilty, whether to waive jury trial, and whether to testify are to be made by the client. Counsel is...

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