State v. Webb

793 P.2d 105, 164 Ariz. 348, 51 Ariz. Adv. Rep. 44, 1990 Ariz. App. LEXIS 9
CourtCourt of Appeals of Arizona
DecidedJanuary 9, 1990
Docket1 CA-CR 12158
StatusPublished
Cited by21 cases

This text of 793 P.2d 105 (State v. Webb) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Webb, 793 P.2d 105, 164 Ariz. 348, 51 Ariz. Adv. Rep. 44, 1990 Ariz. App. LEXIS 9 (Ark. Ct. App. 1990).

Opinions

OPINION

GERBER, Judge.

Appellant, Richard L. Webb, was indicted on January 14, 1987, on one count of first-degree murder in violation of A.R.S. § 13-1105. Prior to trial, the state filed an allegation that the crime was of a dangerous nature. On September 8, 1987, a jury found appellant guilty under A.R.S. § 13-1104 of the lesser included offense of second-degree murder, a class one felony. The trial judge sentenced appellant to an aggravated term of seventeen years imprisonment with appropriate pre-sentence incarceration credit. Appellant filed a timely notice of appeal and raises the following issues:

(1) Was the appellant denied his right to effective assistance of counsel?
(2) Did the trial judge abuse his discretion by failing to limit the introduction of inadmissible evidence?
(3) Did the trial judge abuse his discretion by imposing an aggravated sentence?
(4) Did the jury instruction on self-defense impermissibly shift the burden of proof?
(5) Did the trial judge coerce a deadlocked jury into reaching a verdict?

FACTS

The facts taken in a light most favorable to sustaining the verdict are as follows. Appellant is the oldest son of Beverly (“Shelley”) Weitzel. In 1986, Shelley married the victim, Frank Weitzel. Shelley and Frank lived with their son Ryan and two of Shelley’s children by a previous marriage, Jacob and Rochelle Webb.

On January 1, 1987, appellant traveled to his mother’s home and received $300 cash as a late Christmas gift. That same day, he used the money to purchase a 9 mm. handgun. He then returned to his mother’s home. Shelley and Frank Weitzel had been arguing. As appellant went to speak with his mother, Frank Weitzel left the house. Appellant spoke to both Shelley and his brother Jacob.

[351]*351Later that evening, Frank Weitzel returned home. He encountered Webb outside the front door, and the two men argued. A struggle ensued during which appellant shot Weitzel four times, killing him almost instantly.

After the shooting, appellant entered the house and spoke briefly with Shelley and Jacob. He then drove away in his truck on a four-day trip to California. Approximately two hours after the shooting, Shelley called the 911 emergency number to report that her husband was lying in the yard. When police questioned Shelley, Jacob, and Rochelle concerning the incident, they initially claimed to have heard nothing nor to have even seen appellant that day. After further questioning, however, they acknowledged that they did see the appellant before and after the shooting.

Appellant disposed of the gun before he returned from California. It was not introduced as evidence at trial. At trial, appellant acknowledged that he shot Frank Weitzel but claimed that the shooting was an accident while they struggled over the weapon. Appellant also claimed that before the struggle, Weitzel had threatened to take his gun and kill him and his mother.

A. INEFFECTIVE ASSISTANCE OF COUNSEL •

Appellant first claims that his attorney was ineffective for (1) failing to object or objecting on improper bases to the admission of certain testimony and evidence; (2) for misunderstanding the Arizona rule on motions for judgment of acquittal; (3) for failing to object during closing argument; and (4) for failing personally to appear at the sentencing hearing.

To demonstrate ineffective assistance of counsel, appellant must satisfy a two-prong test. First, he must show that, under the circumstances, his counsel’s actions were unreasonable under prevailing professional norms. 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). Second, there must be a reasonable probability that, absent counsel’s unprofessional errors, the result of the proceedings would have been different. Id. at 398, 694 P.2d at 228; State v. Lee, 142 Ariz. 210, 219, 689 P.2d 153, 162 (1984). The court need not approach the inquiry in a specific order or address both prongs of the inquiry if the defendant makes an insufficient showing on either one. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985).

Actions of defense counsel which appear to be trial tactics will not support an allegation of ineffective assistance of counsel. State v. Espinosa-Gamez, 139 Ariz. 415, 417, 678 P.2d 1379, 1381 (1984). Courts presume that counsel’s conduct is trial strategy. State v. Fisher, 152 Ariz. 116, 118, 730 P.2d 825, 827 (1986), citing Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694-95 (1984). In the instant case, we do not have the benefit of a Rule 32 post-conviction hearing as to the effectiveness of defense counsel.1 Therefore, counsel’s effectiveness must be judged solely from the record before us. State v. Bush, 148 Ariz. 325, 328, 714 P.2d 818, 821 (1986). In such a situation, appellant has a greater burden to overcome because the record seldom shows reasons for the attorney’s decisions. The “strong presumption” is that counsel’s actions were made for strategic or tactical reasons. State v. Santanna, 153 Ariz. 147, 150, 735 P.2d 757, 760 (1987), citing Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2066, 80 L.Ed.2d at 693-95.

1. Counsel’s Failure to Object to Admission of Certain Testimony and Evidence

Appellant first claims that counsel failed to object on hearsay grounds to admission of a tape recording of Shelley’s phone call to the 911 emergency department made two hours after the shooting. However, the trial transcript shows that defense counsel did object to admission of the tape. He argued precisely that it was inadmissi[352]*352ble unless the state could establish a factual basis by showing that it was inconsistent with Shelley’s trial testimony. Although defense counsel did not specifically use the word “hearsay”, his statements show that he objected on the basis of hearsay and argued that the testimony did not fall within the “prior inconsistent statement” exception to the hearsay rule.

The trial court properly admitted the tape recording. It did not constitute hearsay. In her telephone call, Shelley stated that her husband was “laying out in the front yard” and she had no idea what was wrong with him. The state posited at trial that Shelley knew that Frank Weitzel had been shot by appellant and was trying to conceal her knowledge of that fact. The state did not offer the. tape recording to establish the truth of the matter asserted (that her husband was lying in the front yard) but rather to show that she was concealing the crime with the claim she did not know what was wrong with him. See Rule 801(c), Arizona Rules of Evidence; State v.

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Cite This Page — Counsel Stack

Bluebook (online)
793 P.2d 105, 164 Ariz. 348, 51 Ariz. Adv. Rep. 44, 1990 Ariz. App. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-webb-arizctapp-1990.