State v. Borbon

706 P.2d 718, 146 Ariz. 392, 1985 Ariz. LEXIS 242
CourtArizona Supreme Court
DecidedSeptember 6, 1985
Docket6339
StatusPublished
Cited by61 cases

This text of 706 P.2d 718 (State v. Borbon) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Borbon, 706 P.2d 718, 146 Ariz. 392, 1985 Ariz. LEXIS 242 (Ark. 1985).

Opinions

CAMERON, Justice.

Defendant, Estevan Borbon, was convicted and adjudged guilty of attempted armed robbery with a dangerous or deadly weapon, A.R.S. §§ 13-1001, -1904, aggravated assault, A.R.S. § 13-1204, resisting arrest, A.R.S. § 13-2508, and criminal trespass, A.R.S. § 13-1504. Because defendant was on probation from an earlier matter, solicitation of the sale of cocaine, he was sen[394]*394tenced to life imprisonment without possibility of parole for twenty-five years for the robbery,.A.R.S. § 13-604.01, two and one-quarter years for the assault, A.R.S. § 13-604, two and one-quarter years for the resisting arrest, A.R.S. § 13-604, and two and one-quarter years for the criminal trespass, A.R.S. § 13-604. All sentences were to run concurrently.

We must decide the following issues:

I. Did the trial court err in refusing to grant defendant’s Rule 11 request for a hearing to determine his competency to stand trial?

II. Did the trial court err in refusing to grant defendant’s motion to produce police records of one of defendant’s witnesses?

III. Did the trial court improperly instruct the jury concerning the term “readily capable of causing serious physical injury?”

IV. Was defendant denied effective assistance of counsel?

V. Did the trial court err in denying defendant’s Rule 32 petition for an evidentiary hearing concerning the effectiveness of trial counsel?

The facts follow: On 19 December 1983, Donald Gilmore was working the “graveyard shift” at a Thrifty Oil Gas Station located in south Tucson, Arizona. At some time after midnight, a black car drove into the station and defendant and another man got out and paid for about 68 cents of gasoline. They then asked Gilmore to give them more gas, free of charge. When Gilmore refused, defendant began to yell at him and threatened to rob him. After several minutes, the two men got back into the car. As they were driving away, Gilmore wrote down the license number of their car.

About half an hour later, defendant returned to the gas station and began hitting the window of the cashier’s booth, in which Gilmore was sitting, with a tire iron. The booth was locked and the windows were made of bulletproof glass, preventing defendant from breaking in. As Gilmore picked up the phone to dial the police, Officer Clarence Johnson drove up to the station.

Officer Johnson had been patrolling that area of town, making a security check of the businesses located there. He noticed a black car parked by the Valley National Building. As he drove toward it, the car pulled out and began driving away. Officer Johnson followed the car and, while doing so, saw defendant at the Thrifty station hitting the cashier's booth. When defendant saw the police car, he attempted to flee. The officer followed him in the car for a couple of blocks and then got out to attempt to arrest him. Defendant turned on him with the tire iron, dropped the iron, and continued to run.

Defendant then forced his way into one of the nearby homes. Officer Johnson followed him in and again attempted to arrest him. During the ensuing struggle, defendant hit Johnson in the face and kicked him. Finally, and with the help of a man who was staying in the house, the officer handcuffed defendant and placed him under arrest. Defendant appeals from his conviction and sentence and from a denial of relief sought pursuant to Rule 32, Rules of Criminal Procedure, 17 A.R.S. The two matters were consolidated in this opinion.

I.

DEFENDANT’S RULE 11 MOTION

Prior to trial, defendant moved for an examination to determine his competency. Rule 11.1, Arizona Rules of Criminal Procedure, 17 A.R.S. Dr. Richard Hinton, a psychologist who works for the Pima County Court Clinic, conducted an initial, prescreening evaluation, pursuant to a local Pima County practice, in which he concluded that there were insufficient grounds to pursue a formal Rule 11 proceeding. Dr. Hinton’s report stated that:

Mr. Borbon was able to accurately state the charges against him. He identified his attorney as Donald Klein and demonstrated an adequate understanding of his role and function. He also articulated clearly the role and function of the judge [395]*395and prosecutor in criminal proceedings. This man is felt to be capable of giving informed consent to a plea agreement, should one be offered to him.

The trial court denied defendant’s request, stating:

I have read Dr. Hinton’s report now several times previously, and again today, and if we are to use this screening process at all and have it mean anything, then I think I must follow his conclusions and whatever language he may have used in describing all of it, he certainly finds not to warrant formal Rule 11 proceedings, so I will deny your motion.

Defendant now argues that the trial court’s ruling constituted prejudicial error.

Rule 11.2 permits either party to a criminal proceeding to “move for an examination to determine whether a defendant is competent to stand trial * * Once the party has properly made this motion, the trial court must determine whether reasonable grounds for an examination exist. Rule 11.3. We have stated that “[reasonable grounds exist [when] there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceeding against him and to assist in his defense.” State v. Salazar, 128 Ariz. 461, 462, 626 P.2d 1093, 1094 (1981). Evidence is sufficient when it creates a doubt in the court’s mind as to defendant’s competency. State v. Messier, 114 Ariz. 522, 525, 562 P.2d 402, 405 (App. 1977). Whether reasonable grounds exist is a determination within the trial judge’s discretion and his decision will not be reversed unless there is a manifest abuse of this discretion. State v. Romero, 130 Ariz. 142, 147, 634 P.2d 954, 959 (1981).

Pima County has developed an uncodified practice in which defendants who seek Rule 11 appointments are required to submit to a pre-Rule 11 screening. See State v. Neal, 143 Ariz. 93, 99, 692 P.2d 272, 278 (1984). Defendant argues that the effect of this practice is to impermissibly delegate the trial court’s decision as to whether reasonable grounds exist to the pre-screening doctor. We do not, however, find this arrangement substantially different from the situation that we approved of in State v. Cook, 115 Ariz. 188, 564 P.2d 877 (1977).

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Cite This Page — Counsel Stack

Bluebook (online)
706 P.2d 718, 146 Ariz. 392, 1985 Ariz. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-borbon-ariz-1985.