State v. Ring, 5122

• Decision Date: 19 February 1982
• Docket Number: No. 5122,5122
• Citation: 131 Ariz. 374,641 P.2d 862
• Parties: STATE of Arizona, Appellee, v. Michael Lee RING, Appellant.
• Court: Arizona Supreme Court

Page 862

641 P.2d 862

131 Ariz. 374

STATE of Arizona, Appellee, v. Michael Lee RING, Appellant.

No. 5122.

Supreme Court of Arizona, In Banc.

Feb. 19, 1982.

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

David J. Hossler, John N. Nelson, Yuma, for appellant.

HOLOHAN, Chief Justice.

After a jury trial, appellant Michael Lee Ring was convicted of eleven counts of kidnapping with intent to commit robbery, former A.R.S. § 13-492; ten counts of assault with a deadly weapon, § 13-249; and one count each of grand theft, § 13-663; robbery while armed with a gun, § 13-641; first degree burglary, § 13-302; and first degree murder, § 13-451 ^*. Appellant was sentenced to life imprisonment on each of the robbery, kidnapping, and assault counts, 5 to 15 years on the burglary count, and 5 to 10 years on the theft count, all sentences to run concurrently.

No timely appeal was filed from these convictions and sentences, but appellant was granted the right to file a delayed appeal pursuant to a petition for post-conviction relief under rule 32, Arizona Rules of Criminal Procedure, 17 A.R.S.

The evidence presented against appellant at trial showed that appellant entered a Safeway Store in Yuma, Arizona, before 3:00 A.M. on Monday, August 28, 1978, by prying open a rooftop skylight. He wore a mask and gloves throughout the robbery and was armed with a loaded handgun. He brought with him a bag containing chains and locks. As the store's employees arrived, appellant successively forced five employees at gunpoint to enter an upstairs compressor room and to secure themselves to pipes with chains locked tightly about their necks. Two more employees arrived later and appellant attempted to direct them to the upstairs room, but one employee, Flora Burks, refused to go. She threw a refuse container at appellant and ran into the main section of the store. Appellant fired at Ms. Burks, striking her in the leg, causing her to fall. Appellant walked up to Ms. Burks where she lay, and shot her again in the lower abdomen. Appellant then made two other employees carry Ms. Burks to the upstairs room, where she was left lying in the middle of the floor.

One of the chained employees, Leora Bohannon, fainted when Ms. Burks' bloodstained body was brought into the room. Ms. Bohannon slumped over and began choking on the tight chain around her neck. The other chained employees pleaded with appellant to help her, but appellant believed In the meantime, an employee who had the key to the office safe had arrived. Appellant led her at gunpoint to the safe and had her set the time lock so the safe could be opened in fifteen minutes. During this period he removed cash from other safe compartments, and he also forced two new arrivals to wait near the office. When the safe was opened, the employee removed approximately $6,000.00 in cash and placed the money in a paper bag held by appellant. Appellant forced the employee and three other persons to a back room of the store; he made one person tie two others to posts with dog leashes taken from a store display and tied the other two people himself.

she was only pretending to choke so that he would release her. He refused to unlock the chain, and Ms. Bohannon subsequently died of asphyxiation due to strangulation.

Although appellant had obtained a set of keys to the store from one employee, he was unable to open the back doors. Appellant eventually escaped through the same skylight he had originally entered. From the roof appellant dropped to what he thought was a concrete ledge. In fact it was a foam rubber bumper pad against which trucks backed up while unloading merchandise. Appellant broke through the pad and fell some thirty-five feet, landing in a large "dumpster" trash container, sustaining several cuts, abrasions, and bruises. He was momentarily stunned but soon recovered and returned home.

Meanwhile, one of the employees had managed to untie herself and called the police. When the police arrived they found Ms. Bohannon was dead. One police officer discovered a new bicycle chained in the alleyway next to the store. The police traced a tag on the bicycle through a local merchant who had sold the bicycle a few days earlier to appellant.

At approximately 4:00 P.M. that afternoon, two police officers went to appellant's home, ostensibly to investigate the ownership of the bicycle. Both officers noted that appellant was bleeding from a fresh cut behind his ear and walked with a limp. Appellant told the police that the bicycle had been stolen from him on Friday. However, when they asked how he had been injured, he said he had fallen from the bicycle on Saturday. Appellant agreed to accompany the officers to the police station to discuss the bicycle. After that discussion, appellant was read his Miranda rights and agreed to answer some questions about the robbery. His answers raised the officers' suspicions. The officers asked him to participate in a voice lineup. Four witnesses to the robbery identified his voice as that of the robber. Appellant was arrested and detained at the station.

Later that same evening an officer asked appellant if he needed medical treatment for his injuries, which he refused, and informed him that an attorney could be appointed for him the next day. He offered to tell appellant what the charges against him were and what evidence had been found against him. Appellant agreed to listen, and after hearing the evidence he confessed to the crimes. Appellant was advised again of his Miranda rights and signed a waiver form; then he related the details of the robbery before several police officers. He repeated the confession on a tape recording immediately afterward; a transcript of that recording was presented in evidence at trial.

Based upon the confession, the officers obtained two search warrants for appellant's home and recovered the clothing and mask worn by the robber, the gun, the bag of money, the keys to the locks used to secure the employees, and other evidence, all of which was presented at trial. Appellant was convicted on 25 counts, as detailed above.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

Our current standard for weighing claims of ineffective assistance of counsel is whether the proceedings were rendered a sham or mockery of justice. State v. Moreno, 128 Ariz. 257, 625 P.2d 320 (1981). We find that counsel's representation here was satisfactory, either under that standard or under the "reasonably competent and effective" We have examined appellant's transcribed confession and find no grounds to challenge its voluntariness. The police reread his Miranda rights and determined that he understood them, and appellant stated, "I'm doing it completely on my own will. Nobody has talked me into doing this. I am just volunteering it." The search warrants are also free from defects. Failure to argue frivolous or groundless matters does not make counsel ineffective. State v. Streett, 11 Ariz.App. 211, 463 P.2d 106 (1969).

standard adopted by the Ninth Circuit Court of Appeals in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). Appellant alleges several instances in which his appointed counsel at trial failed to render competent assistance. Initially, he attacks counsel's failure to move to suppress appellant's confession as involuntary and to challenge the validity of the search warrants and evidence seized under them.

Appellant attempts to distinguish Saunders v. Eyman, 600 F.2d 728 (9th Cir. 1977), in which the court found no ineffectiveness from trial counsel's failure to raise an objection to a confession's voluntariness. Appellant asserts that in Saunders the reviewing court could itself determine from the record that the confession was voluntary, but that in this case no such record exists. We disagree, because the record here clearly shows the confession to be completely voluntary. Nor does the record show any impropriety in the searches and seizures, so failure to object thereto does not indicate incompetence. Argo v. United States, 378 F.2d 301 (9th Cir. 1967), cert. denied, 390 U.S. 907, 88 S.Ct. 823, 19 L.Ed.2d 874 (1968).

Appellant next asserts that trial counsel failed to investigate other possible defenses, including insanity and intoxication. While effective counsel must carefully investigate all available defenses, State v. Lopez, 3 Ariz.App. 200, 412 P.2d 882 (1966), we find that trial counsel here properly explored both those defenses. Appellant pleaded not guilty and not guilty by reason of insanity to all charges. Counsel moved to have appellant's mental condition examined before trial, but both doctors reported that the appellant was sane and could assist in his defense. Thus counsel explored the insanity defense and made a strategic decision not to pursue it. Ineffective assistance of counsel claims may not be predicated upon disagreements as to trial strategy. State v. Rodriguez, 126 Ariz. 28, 612 P.2d 484 (1980); State v. Workman, 123 Ariz. 501, 600 P.2d 1133 (App.1979); State v. Cufio, 12 Ariz.App. 461, 471 P.2d 763 (1970); see also Saunders v. Eyman, 600 F.2d 728 (9th Cir. 1977).

As for the defense of intoxication, counsel raised that question in cross-examining the state's witnesses, and the jury was properly instructed as to the effect of intoxication on a person's mental state. Current A.R.S. § 13-503; State v. Laffoon, 125 Ariz. 484, 610 P.2d 1045 (1980). Moreover, the evidence tended to show that while appellant had been drinking before he entered the store, he was not drunk during the robbery. There was no evidence that he was drinking in the store during the several hours that he was there. This case closely resembles State v. Kruchten, 101 Ariz. 186, 196, 417 P.2d 510, 520 (1966), cert. denied, 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1967): "Realistically, (appellant's)...