State v. Valdez

806 P.2d 1376, 167 Ariz. 328, 80 Ariz. Adv. Rep. 9, 1991 Ariz. LEXIS 17
CourtArizona Supreme Court
DecidedFebruary 21, 1991
DocketCR-89-0313-PC
StatusPublished
Cited by12 cases

This text of 806 P.2d 1376 (State v. Valdez) 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. Valdez, 806 P.2d 1376, 167 Ariz. 328, 80 Ariz. Adv. Rep. 9, 1991 Ariz. LEXIS 17 (Ark. 1991).

Opinions

OPINION

CAMERON, Justice.

I. JURISDICTION

Defendant, Antonio Escarsega Valdez, petitions this court for review of the trial [329]*329court’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.

II. ISSUE

Whether defense counsel’s failure to object to the prosecutor’s improper comment constitutes ineffective assistance of counsel?

III. FACTS

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 evi-dentiary 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.

IV. 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 [330]*330defendant. 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.

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State v. Valdez
806 P.2d 1376 (Arizona Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
806 P.2d 1376, 167 Ariz. 328, 80 Ariz. Adv. Rep. 9, 1991 Ariz. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-valdez-ariz-1991.