State v. Valdez
| Citation | 806 P.2d 1376,167 Ariz. 328 |
| Decision Date | 21 February 1991 |
| Docket Number | No. CR-89-0313-PC,CR-89-0313-PC |
| Parties | STATE of Arizona, Appellee, v. Antonio Escarsega VALDEZ, Appellant. |
| Court | Supreme Court of Arizona |
Defendant, Antonio Escarsega Valdez, petitions this court for review of the trial court's denial of his petition for post-conviction relief. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and Rule 32.9(c), Ariz.R.Crim.P., 17 A.R.S.
Whether defense counsel's failure to object to the prosecutor's improper comment constitutes ineffective assistance of counsel?
Defendant was convicted of aggravated assault while on parole for a prior felony conviction pursuant to A.R.S. § 13-1204(A)(2) and (B). He was sentenced to life without the possibility of parole until at least 25 years had been served; to run consecutively with another sentence imposed in an unrelated matter. See A.R.S. § 13-604.02(A). Defendant appealed to this court and we denied his appeal. See State v. Valdez, 160 Ariz. 9, 770 P.2d 313 (1989). 1
In that opinion, a majority of this court held that defense counsel's failure to object to a prosecutor's "grossly improper" statement made in closing argument waived any error. Id. at 13, 770 P.2d at 317. We also rejected the argument that the prosecutor's comments resulted in fundamental error because the error related "only to an isolated evidentiary matter raised in final argument." Id. at 14, 770 P.2d at 318.
(Cameron, J. dissented on this point).
Because there was no record, the majority of this court did not decide whether defense counsel's failure to object rendered his assistance ineffective in violation of the sixth amendment to the United States Constitution. Instead, the court indicated that the issue of ineffective assistance of counsel could be addressed in further post-conviction relief proceedings. See Rule 32, Ariz.R.Crim.P., 17 A.R.S.
On 18 September 1989, pursuant to a petition for post-conviction relief, an evidentiary hearing was conducted. The hearing focused solely on defense counsel's reasons for not objecting to the prosecutor's improper comments. No other example of defense counsel's ineffectiveness was shown.
The prosecution's objectionable statement was in response to defense counsel's following comment in closing argument:
And when you compare the testimony with the law and instructions given to you, I'm confident you'll come back with a verdict of not guilty, at least as to the aggravated assault.
I can almost concede a much easier task of finding the lesser-included offense. But as to the aggravated assault, it might have been a little different if Mr. Griggs were here--Mr. Davis were here, might have been a whole lot easier for the state to prove their case. But as it is now, he's not here and they've not done it.
Trial transcript at 371.
In response the prosecutor stated:
I want to first address the almost concession that Mr. Acuna almost made at the end of his remarks. And that was that he almost conceded that you could find the lesser-included offense.
I suggest to you folks he wants you to find the lesser-included offense because he wants you to plea bargain. He wants you to give him the plea bargain the State wouldn't, and that's not your job.
Trial transcript at 373.
As noted above, defendant's trial counsel did not object and we held that this failure to object waived any error that might have existed. Valdez, 160 Ariz. at 13, 770 P.2d at 317. We, therefore, address only the issue of ineffective assistance of counsel.
The touchstone of an ineffective assistance of counsel claim is whether defendant was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that [defense] counsel has provided effective assistance to a defendant. Id. at 669, 104 S.Ct. at 2055, 80 L.Ed.2d at 682.. Strickland established a two-prong test to determine the extent of this presumption. Id. This court has adopted the Strickland test, stating:
To determine whether [defense] counsel was ineffective, a two-pronged test is applied: 1) was counsel's performance deficient? State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227, cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); and 2) was defendant prejudiced by his attorney's deficient performance? State v. Lee, 142 Ariz. 210, 213-14, 689 P.2d 153, 156-57 (1984). This test complies with the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
State v. Fisher, 152 Ariz. 116, 118, 730 P.2d 825, 827 (1986).
First, defendant must show that trial counsel's performance fell below an objective standard of reasonably effective assistance under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 693-694. In evaluating trial counsel's conduct, we consider all circumstances, with a strong presumption that the conduct falls within a wide range of reasonable professional assistance. Id.
Second, trial counsel's performance must have prejudiced defendant's case. Id. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. Defendant must show that, but for trial counsel's error, there is a "reasonable probability" that the result would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Reasonable probability is "probability sufficient to undermine confidence in the outcome." Id. When a defendant challenges a conviction, the inquiry is whether, absent the errors, there is a "reasonable probability that ... the fact finder would have had reasonable doubt [as to] defendant's guilt." Id. at 695, 104 S.Ct. at 2068-69, 80 L.Ed.2d at 698. We need not consider the second prong, however, because we believe defendant failed to show that trial counsel's conduct fell below an objective standard of reasonably effective assistance under prevailing professional norms.
The focus of the post-conviction relief hearing was to determine why defendant's counsel did not object to the prosecutor's statement. Defendant's counsel knew there was some problem with the State's improper argument, but did not know the proper objection. His failure to object was not a strategic decision. He testified on direct examination with respect to the improper argument:
Q. (By Mr. Weninger) Were you aware of the fact that this was an improper argument?
A. (Mr. Acuna) I was--I was aware that I--that the argument had some problem with it. I had felt that there was something with the argument that wasn't exactly right or appropriate, but I didn't know what the objection was to make.
Q. Okay. In other words, you were unfamiliar with the specific objection to that argument?
A. At the time I was not.
Q. Were you aware of the rules of criminal procedure which indicate that plea--or evidence of plea bargaining or the results of plea bargaining may not be admitted at trial?
A. As a general rule I know that those things are not supposed to be discussed.
Q. Okay. So would it be fair to say that this was not a strategy on your behalf to create error in this trial?
A. No, sir. That is fair to say it was not a strategy on my behalf.
Q. Do you agree, sir, that it was an improper argument by the state?
A. Yes.
Q. Would you say, sir, that you made a mistake by not objecting to it?
A. Yes, I would.
Q. And it was certainly not a--a strategy on your behalf? It was just, basically, you didn't realize what the objection was?
A. I didn't make the objection because I didn't realize at the time what objection to make.
Post-conviction relief hearing transcript at 10-11.
Cross-examination established that defense counsel did not believe that the prosecutor was referring to failed plea negotiations in this case but was referring to plea bargains generally:
Q. (By Mr. Lauritzen) Sir, do you believe--did you believe at the time that I made the argument that I was calling the attention of the jury to our failed plea negotiations?
A. (Mr. Acuna) That's not what I believed at the time.
* * * * * *
Q. And at the time that you heard me speak those words, is it fair to say that you didn't perceive that as referring to those, quote, negotiations?
A. Not to those.
Q. And you knew at the time that you heard that argument that Rule 17.4 prohibited me [from making] any comment whatsoever to the jury about our plea negotiations; you were aware of that rule, were you not?
A. I was not aware of the--Rule 17.4. I was aware, as I testified, as--the general rule that those things are not to be discussed.
* * * * * *
Q. And isn't it fair to say, sir, that your failure to object was based both on your making a mistake, your not knowing what the proper objection was, and your knowledge that our negotiations had been virtually zero, and that my comment wasn't referring to them?
A. I can't say that your comments weren't referring to them. I can only say I didn't think that they were at the time.
Q. Fine.
A. I thought they were referring to pleas in general.
Post-conviction relief hearing transcript at 14-17.
After hearing the testimony and arguments, the trial judge found the following:
I have here a case where the State presented its own evidence. The defendant testified. The defendant was not examined about his willingness to plead or accept any lesser charges. The argument that the defense counsel made in this case was an appropriate argument in light of the evidence available to it. The prosecutor's response, if it warranted an objection at the time he made it, certainly didn't raise any question in this Court's mind as to--about it requiring any type of admonition to the jury.
I think what--I don't fault counsel for not objecting and I don't think it's fundamental error because I...
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