State v. Lee

689 P.2d 153, 142 Ariz. 210, 1984 Ariz. LEXIS 282
CourtArizona Supreme Court
DecidedSeptember 25, 1984
Docket6107-PR
StatusPublished
Cited by135 cases

This text of 689 P.2d 153 (State v. Lee) 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. Lee, 689 P.2d 153, 142 Ariz. 210, 1984 Ariz. LEXIS 282 (Ark. 1984).

Opinions

GORDON, Vice Chief Justice:

For his participation in the robbery of a Village Inn Pizza restaurant in Mesa, Arizona, appellant-respondent Billy Don Lee was convicted on May 11, 1981 of aggravated robbery in violation of A.R.S. § 13-1903(A) and sentenced to twenty years imprisonment. The primary question on appeal is whether trial counsel’s acquiescence in appellant’s demand that he call witnesses whose veracity and credibility counsel strongly doubted and the concomitant waiver of closing argument constitute ineffective assistance of counsel. A review of the facts and history of this case are provided in State v. Lee, 142 Ariz. 227, 689 P.2d 170 (App.1983). Only those facts necessary for disposition of the questions before us will be repeated here.

In pre-trial discussions between appellant and trial counsel,1 appellant insisted that counsel call Anthony Scott and Willie Hubbard. Both men had previously entered plea agreements with the state regarding the robbery; both had been sentenced. Based on his personal investigation of the case and interviews with Scott and Hubbard, counsel believed they would, if called to testify, present perjurious testimony. He also believed appellant’s case would be stronger without their testimonies. Counsel tried to convince appellant that it would be better not to call them. Appellant was adamant and counsel acceded to appellant’s demand. Upon calling Scott, counsel asked basic introductory questions to establish Scott’s identity and to establish that he had [213]*213personal knowledge of the robbery at issue. He then asked, “Will you tell the jury exactly what happened that night [of the robbery], please?” Scott provided a narrative account of the events he considered relevant; he was rigorously cross-examined and excused. The questioning of Hubbard followed the same course.

At that point, the court recessed and counsel made a record in chambers before the trial judge and court reporter. Counsel said he believed the two witnesses had perjured themselves. He explained that he had called them, notwithstanding his pretrial belief that they would perjure themselves, because his client had insisted that he do so. Counsel stated:

“It was my conclusion after all this mental wrestling [on my ethical obligation under the circumstances,] that my belief that the testimony was perjured was not dispositive and that it was not my place to make that decision in my own head and therefore deprive the defendant of his constitutional right to present testimony in his own behalf.”

He also informed the court that he might waive closing argument because he did not know if he could “get up in front of the jury and make an argument based on what I am positive in my own mind is perjured testimony.”

At the appropriate time, counsel waived closing argument. Appellant was found guilty and, after admitting two prior felonies, sentenced to the maximum term of twenty years. Counsel’s motion to withdraw was granted, new counsel was appointed, and appellant sought post-conviction relief under Ariz.R.Crim.P. 32. That relief was denied. Appellant timely filed notice of appeal from both judgments. The matters were consolidated for decision.

Appellant claimed he received ineffective assistance of counsel because trial counsel had called witnesses trial counsel believed would be harmful to appellant’s case, because trial counsel had waived closing argument, and because trial counsel’s in chambers remarks prejudiced the trial court against him such .that he received a more severe sentence than he would otherwise have received. The Court of Appeals found trial counsel’s decision to call the two witnesses improper, but declined to consider relief on that ground. It did, however, grant relief on the ground that counsel’s decision to waive closing argument constituted ineffective assistance. The conviction was reversed and the matter remanded for a new trial.

The state petitioned for review. We have jurisdiction pursuant to Ariz. Const, art. 6, § 5(3) and Ariz.R.Crim.P. 31.19.

I

In May of this year, the United States Supreme Court set forth the standard to be applied in cases in federal court involving allegations of ineffective assistance of counsel based on “ ‘actual ineffectiveness’ of counsel’s assistance in a case going to trial.” Strickland v. Washington, — U.S. -, -, 104 S.Ct. 2052, 2062, 80 L.Ed.2d 674, 691 (1984). The Court said:

“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Id. at-, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.

In State v. Watson, 134 Ariz. 1, 653 P.2d 351 (1982), this Court rejected the “farce, sham or mockery of justice” standard for counsel’s ineffectiveness and adopted the “minimal competence” standard. We said:

“Failure by an attorney to pursue [matters generally agreed upon as consti[214]*214tuting proper defense practice in criminal cases] would be considered representation which falls below the minimum standards of professional competence required of defense counsel.”

Id. at 5, 653 P.2d at 355. This inquiry comports with the first component of the Strickland test and remains the law of this state. We then recognized, as did the Supreme Court in Strickland, that “not all errors by counsel are harmful to the defendant, and reversal is not required for harmless error,” id. We held that

“[o]nce the defendant [shows counsel’s ineffectiveness] by a preponderance of the evidence, the state bears the burden of showing that the failure, if any, was harmless to the defendant beyond a reasonable doubt under the circumstances of the case.”

Id. It is this second requirement, which shifts the burden of proof to the state to show that the error was not so prejudicial as to require reversal, that is at odds with Strickland. Though not constitutionally compelled to do so, we have reconsidered the test set forth in Watson;- because an appellant is in a better position than the state to know what transpired between trial counsel and appellant and because appellate counsel is in a better position than the state to determine how errors of trial counsel prejudiced his or her client, we believe the standard set forth in Strickland is the better one. We hold today that a criminal defendant is entitled to have his or her conviction reversed if he or she shows, first, that under the circumstances and in light of prevailing professional norms counsel showed less than minimal competence in representing the criminal defendant and, second, that “there is a reasonable probability that, but for codnsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, supra, — U.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Jumper
Court of Appeals of Arizona, 2025
In Re Delinquency of G.G.
562 P.3d 389 (Court of Appeals of Arizona, 2024)
Edward V. Hailstone v. State of Alaska
557 P.3d 1211 (Court of Appeals of Alaska, 2024)
State v. Bermea
Court of Appeals of Arizona, 2023
State v. Traverso
Court of Appeals of Arizona, 2023
Garcia v. Shinn
D. Arizona, 2022
Terry v. United States
D. Arizona, 2021
Cordova v. Shinn
D. Arizona, 2021
Andriano v. Shinn
D. Arizona, 2021
State v. Garcia Del Castillo
Court of Appeals of Arizona, 2020
State v. Tran
Court of Appeals of Arizona, 2019
State v. Lopata
Court of Appeals of Arizona, 2018
State v. Johnson
Court of Appeals of Arizona, 2017
State v. Baker
Court of Appeals of Arizona, 2017
State of Arizona v. Phillip Gregory Speers
361 P.3d 952 (Court of Appeals of Arizona, 2015)
State v. Walker
Court of Appeals of Arizona, 2015
State v. Doty
Court of Appeals of Arizona, 2015
State v. Navarrette
Court of Appeals of Arizona, 2014

Cite This Page — Counsel Stack

Bluebook (online)
689 P.2d 153, 142 Ariz. 210, 1984 Ariz. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-ariz-1984.