State v. Noleen

• Decision Date: 27 September 1984
• Docket Number: No. 6033,6033
• Citation: State v. Noleen, 688 P.2d 993, 142 Ariz. 101 (Ariz. 1984)
• Parties: STATE of Arizona, Appellee, v. Jerome John NOLEEN, Sr., Appellant.
• Court: Arizona Supreme Court

Page 993

688 P.2d 993

142 Ariz. 101

STATE of Arizona, Appellee, v.Jerome John NOLEEN, Sr., Appellant.

No. 6033.

Supreme Court of Arizona In Banc.

Sept. 27, 1984.

Robert K. Corbin, Atty. Gen., by William J. Schafer III and Barbara A. Jarrett, Asst. Attys.Gen., Phoenix, for appellee.

H. Allen Gerhardt, Jr., Mesa, for appellant.

CAMERON, Justice.

The defendant, Jerome John Noleen, Sr., was found guilty by a jury of first degree murder with a deadly weapon, A.R.S. §§ 13-1105,13-1101,13-703, and13-604 and attempted first degree murder with a deadly weapon, A.R.S. §§ 13-1001,13-1105,13-1101,13-701,13-702,13-801, and13-604.He was sentenced to a term of life imprisonment without possibility of parole for twenty-five years for the murder and to a consecutive term of twenty-one years for the attempted murder.He appeals, raising only the question of adequate representation of counsel.We have jurisdiction pursuant to A.R.S. § 13-4031andAriz. Const. Art. 6, § 5(3).

The issue we must resolve on appeal is:

Do any of the following acts of counsel, independently or in combination, constitute grounds for reversal on the basis of ineffective assistance of counsel?

a. Presentation of untimely, oral motions in limine;

b. Failure to object to hearsay testimony of the medical examiner testifying for the state;

c. Failure to request appropriate relief upon alleged misconduct by the prosecutor;

d. Failure to object to improper impeachment evidence;

e. Failure to challenge the voluntariness of the defendant's statements;

f. Failure to move to suppress evidence of ammunition and the gun on Fourth Amendment grounds;

g. Failure to object to photographs;

h. Failure to request instructions on alleged lesser-included offenses;

i. Failure to request a self-defense instruction; and

j. Failure to object to giving a flight instruction.

The facts follow.The defendant and the attempt victim, Barbara Hohnstein(Noleen), were married and had two small children.The defendant's two older children also lived with them.Sometime in 1982 Barbara moved out of the house with the two small children.She obtained an order for child support, which the defendant never paid.On 30 December 1982the defendant invited her and the children over to his house to give the children their Christmas presents.Barbara asked her mother, Mina Belle Hohnstein(the murder victim), to accompany her.Barbara testified that while one of the children was opening a present, the defendant lured her back into his bedroom.He took out the .38 caliber pistol he kept there and shot her in the face.She testified he dragged her into the bedroom and locked the door.She heard the defendant shoot her mother and leave.She testified he later returned, briefly spoke with her, and left again.

The defendant testified that while the child was opening the present, Barbara went into his bedroom, took the gun she knew he kept there, and threatened him with it.He claimed he attempted to take the gun away but during the struggle Mina Belle was shot in the lower abdomen and then Barbara was shot in the face.He further testified he"freaked out" and left without calling for help.

The defendant's car was found eight miles south of Baseline Road on Interstate 10.He was arrested on 5 January 1983 in Midland, Texas.He had registered under his own name at a motel across the street from the place of employment of one of his ex-wives, Susan Lindquist.The defendant claims he does not remember how he traveled to Texas.

Defendant was appointed counsel from the Public Defender's Office.The record shows that defendant's counsel filed a motion for change of judge and a new judge was assigned to the case.Counsel also filed a motion requesting that defendant be brought to the Public Defender's Office for a polygraph examination and later filed a Rule 11 motion on behalf of the defendant.The court granted the motion, and two doctors were appointed to examine the defendant.During this time, defendant filed a pro per motion for mistrial in which he claimed that his counsel had been pressuring him into a plea bargain.The matter of defendant's competence was submitted on the report made as a result of the Rule 11 motion and defendant was found competent to stand trial.Defendant's pro per motion was treated by the court as a motion for termination of counsel and denied.

EFFECTIVE ASSISTANCE OF COUNSEL

On appeal, the defendant raises only one issue: whether he received effective and adequate assistance of counsel at trial.He cites several alleged errors made by his attorney and claims these errors show ineffective assistance of counsel under the minimal competence standard set forth by this court in State v. Watson, 134 Ariz. 1, 4, 653 P.2d 351, 354(1982).In evaluating this appeal, we consider not only the alleged errors pointed out by the defendant but also the entire record on appeal.SeeA.R.S. § 13-4035.We also note that:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.* * * Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Strickland v. Washington, 466 U.S. ----, ----, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696(1984).We adopted the Strickland standard, which places the burden of showing the prejudice that results from ineffective assistance of counsel on the defendant, in State v. Lee, 142 Ariz. 210, ---, 689 P.2d 153, ----(1984).

a. Motions in Limine

At the scene of the crime the police seized a magazine containing an article on silencers for different types of guns, a pillowcase with powder burns on it, and a soup can with steel wool in it.Other evidence presented at trial indicated the defendant had attempted to fashion a home-made silencer in the weeks prior to the shooting.In the motel room from which the defendant was arrested, ammunition was found which was later admitted into evidence.Defendant's counsel made an oral motion in limine to suppress these items of evidence which the court granted as to evidence of the purchase of ammunition, but denied the motion as to the rest of the evidence.On appeal, the defendant claims that even though those motions were considered by the court, the fact that the motions were untimely and orally made indicates that counsel was inadequate.The defendant suggests the motions should have been in writing to give the trial court a better idea of the facts necessary to properly consider the motions, and claims he was prejudiced because the motions were not in writing.

We do not believe the method or timing of the motions prejudiced the defendant.The trial attorney made a motion to preclude the evidence.He supported the motion with oral argument.The trial court heard the motion and made a ruling.Even though the motion should have been in writing, Rule 35.1,Rules of Criminal Procedure, and may have been untimely, Rule 16.1(b),Rules of Criminal Procedure, 17 A.R.S., the judge considered the oral motion and ruled on the merits.We find no prejudice to the defendant.Strickland, supra.

b. Failure to object to hearsay testimony of the medical examiner

At trial, Dr. Heinz Karnitschnig testified about the autopsy which was performed on the decedent.The autopsy, however, was performed by another medical examiner, and Karnitschnig's testimony was based on his reading and interpretation of the autopsy report.The defendant claims this hearsay should not have been admitted at trial.We do not believe, however, that this was error.The doctor testified as to his opinion of the cause of death based on his reading of the medical reports.He was an expert witness, and as such is entitled to base his opinion on inadmissible evidence under our rules.Rule 703,Arizona Rules of Evidence, 17A A.R.S.Failure to object did not indicate ineffective assistance of counsel.

Defendant also claims that counsel failed to interview Dr. Karnitschnig prior to trial.Defendant contends that during cross-examination, the defense counsel asked Karnitschnig about "the autopsy you performed," which defendant claims shows counsel did not even interview the witness prior to trial.This statement appears to be inadvertent as other cross-examination indicates counsel did interview Karnitschnig prior to trial.We find no error.

c. Failure to request a mistrial

During cross-examination of the defendant, the following exchange occurred:

Q [by the prosecutor] MR. NOLEEN, YOU DO KNOW HOW IMPORTANT TODAY IS FOR, FOR YOU, DON'T YOU?

A YES, I DO.

Q IS THERE ANYTHING THAT I COULD SAY TO YOU RIGHT NOW TO GET YOU TO TELL THE TRUTH?

[DEFENDANT'S ATTORNEY]: I OBJECT TO THAT, YOUR HONOR.

[THE PROSECUTOR]: I WILL WITHDRAW THE QUESTION, YOUR HONOR.

THE COURT: THANK YOU.

BY [the prosecutor]:

Q MR. NOLEEN, WOULD YOU HAVE COME INTO COURT TODAY AND ADMITTED TO MURDER?

A NO.

The defendant claims his attorney should have asked for a mistrial or to have the question stricken from the record, citing Pool v. Superior Court, 139 Ariz. 98, 677 P.2d 261(1984) as standing for the proposition that prosecutorial misconduct may provoke a mistrial.We do not think a mistrial would have been appropriate in this case.We do not condone the question asked by the prosecutor, but counsel objected to the question before it was answered, and any further action by the attorney was unnecessary as not being productive.We believe the defense attorney acted properly.

d. Impeachment evidence

During the prosecution's examination of Barbara Hohnstein, the following transpired:

Q [by the prosecutor] DURING THE TIME THAT YOU'VE KNOWN HIM, HAVE YOU FORMED AN OPINION ABOUT HIS TRUTHFULNESS?

A [Barbara Hohnstein] YES, I HAVE.

Q AND WHAT IS THAT OPINION?

A HE HAS LIED TO ME ON SEVERAL OCCASIONS.

Q NOW, MRS. NOLEEN, I UNDERSTAND--IT IS POSSIBLE THAT PEOPLE WHO KNOW...