State v. Meeker, 5986

Decision Date21 December 1984
Docket NumberNo. 5986,5986
Citation143 Ariz. 256,693 P.2d 911
PartiesSTATE of Arizona, Appellee, v. Don Lester MEEKER, Appellant,
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel Criminal Div., Linda A. Akers, Asst. Attys. Gen., Phoenix, for appellee.

E. Sharon Storrs, Phoenix, H. Allen Gerhardt, Jr., Tempe, for appellant.

Don Lester Meeker, in pro. per.

GORDON, Vice Chief Justice:

Defendant was indicted on nine counts of armed robbery, class two felonies and one count of aggravated assault, a class three felony. The state alleged that these offenses were committed while defendant was on probation in violation of A.R.S. § 13-604.01. After a jury trial, defendant was convicted on all ten counts. Defendant was sentenced as follows: Count I (armed robbery), life imprisonment consecutive to the sentence defendant is presently serving in CR-126968; Counts II-VIII (armed robbery), life imprisonment concurrent to Count I; Count IX (armed robbery), life imprisonment consecutive to Counts I-VIII, and Count X (aggravated assault) life imprisonment consecutive to Count IX, resulting in three consecutive life imprisonment terms.

Thereafter defendant filed a petition for post conviction relief pursuant to Rule 32, Ariz.R.Crim.P., 17 A.R.S. A hearing was conducted and the trial court denied the petition. This case is before this Court on defendant's petition for post conviction relief consolidated with defendant's direct appeal. We have jurisdiction pursuant to Ariz. Const., art. 6, § 5(3) and A.R.S. §§ 13-4031 and 13-4033.

INEFFECTIVE ASSISTANCE OF COUNSEL

On appeal defendant raises four issues relating to ineffective assistance of counsel. In his petition for post conviction relief, defendant's attorney raised several issues relating to ineffective assistance of counsel. The issues raised in the petition for post conviction relief will be discussed to the extent that they do not overlap the issues raised in his appellate brief.

Defendant first claims he was denied effective assistance of counsel because his attorney did not request a hearing pursuant to Rule 609, Ariz.R.Evid., 17A A.R.S., to prohibit the use of his own prior felony conviction to impeach him should he testify at trial.

The test for ineffective assistance of counsel in Arizona is now a two prong test as espoused by State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984). The first prong, which comes from State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982) (rejecting the "farce, sham or mockery of justice standard"), requires that the attorney show at least minimal competence in representing a criminal defendant. See also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (this first prong is similar to the first element of the Strickland test.) In explaining the requirement of "minimal competence," the Court in Watson stated:

"Generally, the concept of minimal professional competence can be described and applied without great difficulty. There is general agreement on many of the areas of what constitutes proper defense practice in criminal cases. In representation of a person accused of crime, every defense attorney would be expected to file pre-trial motions when the facts raise issues concerning the voluntariness of statements, the legality of searches, or the suggestiveness of identification. Failure by an attorney to pursue such matters would be considered representation which falls below the minimum standards of professional competence required of defense counsel."

134 Ariz. at 4-5, 653 P.2d at 354-55.

The second prong of our test of ineffective assistance of counsel, adopted in State v. Lee, supra, from Strickland, supra, permits reversal only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Lee, 142 Ariz. at 214, 689 P.2d at 157, quoting Strickland, supra, at ----, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In Lee we defined "reasonable probability" as less than "more likely than not but more than a mere possibility." State v. Lee, 142 Ariz. at 214, 689 P.2d at 157. Thus, even though defendant may show that counsel lacked minimal competence in making particular errors, the defendant must show they had an actual adverse effect on the defense. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, supra, at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 697. In setting out the guidelines for measuring the adverse effect of counsel's errors, the Court stated:

"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors."

Strickland, supra, at ----, 104 S.Ct. at 2069, 80 L.Ed.2d at 698-99.

As to the first prong of the test for ineffective counsel, we find that counsel did not err in failing to request a 609 hearing on defendant's priors. Although in most circumstances a request for a 609 hearing to contest the use of priors would appear to be the norm, the factual circumstances in this case indicate a reasoned tactical decision to forego such a hearing.

The colloquy between the trial judge and defense counsel relating to the 609 hearing follows:

[The Court] "Court inquired to Mr. Hendrickson relative to there being no request for a 609 hearing for Mr. Meeker. The Court having understood that the defendant does, in fact, have priors and asked him if he proposed to request one, and if so, let's resolve it now. Basically that was my bottom line question, or if his client was not going to take the stand, I'll let Mr. Hendrickson respond and advise for the record what he advised to the Court at that time.

"MR. HENDRICKSON: Thank you, your Honor. I have discussed the matter with my client and we have determined that we will not file a motion for a 609 hearing, based on the fact that my client's priors are for relatively minor non-violent offenses. We felt that it would be better to be candid about it rather than to have a jury speculate on what felonies he may have committed.

"THE COURT: Was that in one of the only two meetings that you had with him?

"MR. HENDRICKSON: That was one of the 300 phone calls that I had with him."

Apparently defense counsel thought it advantageous to have the prior convictions revealed rather than to hide them from the jury so the jury would discover that defendant had a relatively short and minor nonviolent criminal history rather than a long prior record of similar violent crimes. Thus, the jury would discover that defendant had a prior conviction for criminal trespass and not speculate that he may have committed other armed robberies. Disagreements as to trial strategy or errors in trial will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis. State v. Tison, 129 Ariz. 546, 633 P.2d 355 (1981) cert. denied, 459 U.S. 882, 103 S.Ct. 180, 74 L.Ed.2d 147 (1982); State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980). Not only did defense counsel articulate his tactical reason for not pursuing a 609 hearing but he discussed the matter with the defendant, and according to counsel defendant agreed that they should "not file a motion for a 609 hearing." We believe that the strategy articulated by defense counsel was rationally based and that the decision not to seek a rule 609 hearing demonstrated minimal professional competence. Cf. State v. Hankins, 141 Ariz. 217, 686 P.2d 740 (1984); State v. Oppenheimer, 138 Ariz. 120, 673 P.2d 318 (App.1983).

Additionally, even if the failure to request a rule 609 hearing was error by counsel, under the second prong of our ineffective counsel test adopted in Lee such error did not prejudice defendant. Defendant did not testify at trial, and thus the defendant's prior felonies were never brought to the attention of the jury. Defendant's choice in not testifying was not based on the prospect of being impeached by the prior felony convictions but was based on rebuttal evidence held by the state. At the post conviction relief evidentiary hearing, defendant's trial counsel testified that he advised him of the state's use of rebuttal evidence.

"Q. Why did you advise--let me ask you, first of all, did you advise the defendant not to take the witness stand?

"A. Yes.

"Q. Why did you advise the witness not to take the witness stand?

"A. Because of the evidence that the State had that I previously enumerated, indicating that the defendant's story, or the defendant's alibi was going to be a fabrication, the tape recordings, the script, and Mr. Reed's potential testimony, all those things would tend to indicate, if they were used, that the defendant's alibi was fabricated.

"We thought that it would be harmful to his cause for him to testify and then for the State to impeach with that kind of evidence. So we advised him not to testify.

"Q. You told him that; is that correct?

"A. Sure. Yes.

"Q. After discussing that with him, did he say that he agreed with your analysis that he shouldn't take the witness stand?...

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