State v. Nash

Decision Date09 January 1985
Docket NumberNo. 5987,5987
Citation143 Ariz. 392,694 P.2d 222
PartiesSTATE of Arizona, Appellee/Cross-Appellant, v. Viva Leroy NASH aka Paul Henderson, Appellant/Cross-Appellee.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Crim. Div., Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee/cross-appellant.

George M. Sterling, Jr., and John Antieau, Phoenix, for appellant/cross-appellee.

GORDON, Vice Chief Justice:

On November 9, 1982, the Maricopa County Grand Jury indicted appellant, Viva Leroy Nash, aka Paul Henderson, on one count of first degree murder, two counts of armed robbery, two counts of aggravated assault, and one count of theft of property with a value of more than $1,000. On May 25, 1983, upon advice of counsel, appellant agreed to submit the case to the trial judge for a determination of guilt or innocence based almost entirely upon the grand jury testimony. 1 Later that same day, the trial court found appellant guilty on all counts. After a subsequent half-day sentencing hearing, the trial court sentenced appellant to terms of incarceration for all crimes except the first degree murder, for which the trial court sentenced appellant to death. Appellant now timely appeals his convictions and sentences. This Court has jurisdiction under Ariz. Const. art. 6, § 5(3), and A.R.S. § 13-4031. We affirm the convictions and sentences. In view of our disposition of this case, we do not reach the merits of the state's cross-appeal.

The facts viewed in the light most favorable to upholding the verdict show that on October 15, 1982 appellant escaped from the Utah State Prison. On October 26, 1982, after arriving in Phoenix, appellant answered Richard Story's newspaper advertisement offering for sale a .357 Colt Trooper revolver. Appellant went to Story's home, and the two men agreed upon a price for the gun. When Story turned away to look for a cleaning kit, however, appellant loaded the gun and turned it upon Story. Forcing Story to bind himself with tape, appellant took the gun from Story's home, leaving Story bound but otherwise physically unharmed.

On November 3, 1982 appellant entered the Moon Valley Coin Shop where Susan McCullough and Gregory West were working. Appellant approached West and began inquiring about purchasing some silver and gold. After speaking with West for a short time, appellant stated "I'll take it all," and pointed a revolver at West. As West sat motionless behind a counter, appellant shot West. As he fell to the right, however, West managed to grab a .38 caliber snubby revolver he kept behind the counter. Though he fired a shot at appellant, West missed. After West's failed attempt at self-defense and despite West's pleas for mercy, appellant shot his victim twice more. West subsequently died of his gunshot wounds. Though appellant pointed his gun at McCullough, he did not fire at her, and she escaped physical injury.

After fatally wounding West, appellant took approximately six hundred dollars in paper currency and coins from the shop. In attempting to flee the scene, appellant was confronted in front of the coin shop by Jack Owens, a neighboring businessman who had heard the commotion. Owens, his own pistol in hand, struggled with appellant outside the shop. During the fight Owens suffered a gunshot wound to his left hand from his own gun.

Police officers then arrived at the scene and arrested appellant. Though appellant claimed he had taken a bus to the crime scene, police officers found a stolen Ford van sixty feet from the coin shop, its motor running, with one of appellant's finger prints on a door handle. It was later determined that appellant used the stolen .357 Colt Trooper in the murder-robbery.

After appellant's indictment, defense counsel conducted an active defense. Appellant's public defender first pursued an insanity defense strategy. He moved to permit various psychiatrists to examine appellant, and the trial court ordered these examinations. Defense counsel also notified the court and the prosecution of the defense's intention to pursue the insanity defense. In addition, counsel filed evidentiary motions seeking the exclusion of much of the prosecution's evidence.

As the case went on, however, it became apparent that the insanity defense strategy had to change. Though the psychiatrists who examined appellant found varying degrees of mental impairment, none found Nash was legally insane under the M'Naughten test. Consequently, the prosecution moved in limine to exclude psychiatric testimony relating to appellant's intent or personality disorders. The trial court granted this motion.

After the granting of the motion in limine, the defense changed tactics. Despite the prosecution's stated intent to seek the death penalty, the defense agreed to submit the case to the trial judge for a determination of guilt or innocence based largely upon the grand jury transcript. After questioning appellant to determine if his consent to submit the case was made knowingly and intelligently, the trial judge agreed to submission. Shortly thereafter the trial judge found appellant guilty on all counts.

At the subsequent half-day sentencing hearing, both the state and the defense presented evidence and made arguments. The trial court found three aggravating circumstances: (1) that appellant had previously been convicted of other felonies in the United States involving the use or threat of violence to other persons, A.R.S. § 13-703(F)(2); (2) that in the commission of the offense, appellant knowingly created a grave risk of death to another person, namely Susan McCullough, A.R.S. § 13-703(F)(3); and (3) that appellant committed the offense as consideration for the receipt, or in expectation of the receipt, of something of pecuniary value, A.R.S. § 13-703(F)(5).

The trial court also failed to find any mitigating circumstances. Though the court found appellant mentally impaired, the court stated this impairment was not significant enough to constitute a mitigating circumstance. The court also refused to find appellant's old age or his commission of a felony murder to be mitigating circumstances. Thus, as there were three aggravating circumstances and no mitigating circumstances, the trial judge sentenced appellant to death.


Appellant raises two issues connected to the ineffective assistance of counsel claim. Appellant first argues that absent a stipulation preventing imposition of the death penalty, an attorney's recommendation to the accused to plead guilty, to plead no contest, or to submit the case to the trial court is per se ineffective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution.

In Arizona, convicted defendants have needed to prove two facts to succeed in an ineffectiveness of counsel claim: (1) that counsel lacked minimal competence, State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982); and (2) that counsel's deficient performance prejudiced the defense. State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984) (adopting second prong of test set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ).

We believe, however, that the time has come to further develop our concept of effective assistance of counsel. In State v. Watson, supra, this Court rejected the "farce, sham, or mockery of justice" standard for determining counsel's ineffectiveness. At that time, we said the "farce standard was originally developed under the fifth amendment's due process clause, and thus this test focused upon the overall fairness of the proceeding." State v. Watson, supra, 134 Ariz. at 4, 653 P.2d at 354 (citations omitted). In contrast, in recent years courts recognized that "the sixth amendment's affirmative grant of the right to counsel is to be considered as a particular requirement of due process demanding consideration separate and apart from the general notion of overall fairness." Id.

The culmination of much of this judicial recognition occurred in Strickland v. Washington, supra. In that case, the United States Supreme Court set out a two-pronged test for determining counsel's effectiveness. First, the defendant must show that counsel's performance was deficient. According to the Court deficient performance is performance falling "below an objective standard of reasonableness. * * * The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Second, the defendant must show that counsel's deficient performance prejudiced the defense. This Court adopted the second prong of Strickland in Lee.

We now believe it is time to adopt Strickland's first prong as well. Thus, counsel's performance will be judged upon a basis of "reasonableness under prevailing professional norms. * * * [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland v. Washington, 466 U.S. at ----, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Thus, with any ineffectiveness of counsel claim we will examine the circumstances as they existed when counsel decided to represent a client in a certain way. These circumstances include not only the specific facts surrounding the trial, but the professional norms in the community.

This standard is an objective one, allowing courts to consult various sources to decide whether counsel's actions were reasonable considering the circumstances and the prevailing professional norms in the community. For example, American Bar Association standards, e.g. A.B.A. Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function") provide guides to what is reasonable. In addition, trial judges conducting hearings pursuant to Rule 32, Rules of Criminal Procedure, 17 A.R.S., may consider expert testimony to decide whether cou...

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