State v. Conner

Page 948

786 P.2d 948

163 Ariz. 97

STATE of Arizona, Appellee, v. Ronnie Lloyd CONNER, Appellant.

Nos. CR-84-0264-AP/PC and CR-85-0347-AP.

Supreme Court of Arizona, In Banc.

Jan. 9, 1990.

[163 Ariz. 98] Robert K. Corbin, Atty. Gen. by Jack Roberts, Asst. Atty. Gen., Phoenix, for appellee.

Kenneth D. Everett, Mohave County Public Defender by Michael J. Burke, Deputy Public Defender, Kingman, for appellant.

OPINION

MOELLER, Justice.

JURISDICTION

Defendant Ronnie Lloyd Conner was convicted of first degree murder and armed burglary. At his first sentencing, he was sentenced to death for the murder and to ten and one-half years for the burglary. After further proceedings in the trial court, including a plea agreement involving these and other charges, he was resentenced and received life imprisonment on the murder count. Thereafter the state successfully moved to have the plea agreement and life sentence set aside and defendant was again resentenced, this time receiving the death penalty. He appeals. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. §§ 13-4031 and -4033.

ISSUES PRESENTED

1. Whether defendant is precluded from asserting ineffective assistance of trial counsel in his second petition for post-conviction relief.

2. Whether the trial court erred by admitting into evidence a letter purportedly written and signed by defendant (Exhibit 28) and a note written by him during the trial (Exhibit 42).

3. Whether the trial court committed fundamental error by failing to instruct the jury, sua sponte, concerning its obligations with respect to Exhibits 28 and 42.

4. Whether the defendant, who did not testify, can challenge the trial court's ruling that his statements could be used for impeachment if he had testified.

5. Whether the trial court erred by setting aside the plea agreement and sentence of life imprisonment and resentencing defendant to death because of in-custody statements made by the defendant to the prosecutor during an uncounselled interrogation.

FACTS

The facts of the crime are depressingly sordid, even by murder case standards. They are, however, essentially immaterial to the issues on appeal, so we refrain from reciting them in detail. An understanding of the procedural background of the case, however, is essential to the disposition of some issues.

Defendant was originally tried, convicted, and sentenced to death for murder and to a term of years for burglary. He appealed. We struck his appointed counsel's opening brief as inadequate and appointed new counsel. New counsel petitioned the trial court for post-conviction relief (PCR) on the basis of ineffective assistance of trial counsel at the sentencing phase. The trial court agreed with defendant's contention, granted his PCR, and ordered resentencing. While awaiting resentencing, defendant escaped from custody on two occasions. Ultimately, he was apprehended in California and returned to Arizona. In the interim, his first appeal was dismissed as moot because his sentencing had been set aside.

Before resentencing, defendant and the state entered into a written plea agreement in which defendant pled guilty to escape and agreed to testify in any prosecution brought against A.F., another alleged participant in the murder. Defendant further agreed to be interviewed by the prosecutor concerning the victim's death and to provide truthful answers to questions in the interviews or in testimony. In exchange, defendant was to receive a two and one-half year sentence on the escape charge, a life sentence on the first degree murder charge, and a ten and one-half year sentence on the burglary charge.

The agreement expressly permitted defendant to proceed with an appeal challenging the validity of his murder and burglary convictions. The agreement also provided that if defendant failed to comply with it, it would be rendered "null and void" and the state could withdraw from the agreement. On August 24, 1984, defendant was resentenced to life imprisonment pursuant to the plea agreement.

Approximately five months later, on January 15, 1985, the prosecutor, with a deputy sheriff, interviewed defendant in the Mohave County Jail. ¹ The prosecutor conducted this interview in the absence of defendant's attorneys and without notice to them. One week after the interview, the prosecutor moved to set aside the plea agreement and the life sentence on the ground that defendant's statements at the interview showed that defendant had breached the plea agreement.

At an evidentiary hearing held on the prosecutor's motion, the trial judge found that defendant's statements at the interview evidenced a breach of the plea agreement. The trial court set aside the plea agreement and the life sentence and resentenced defendant to death. Defendant appeals from this order and resentencing as well as from the original convictions for burglary and murder. We consolidated the appeal with the review of his second PCR.

DISCUSSION

1. The Second PCR's Assertion of Ineffective Assistance of Trial Counsel

After this court discharged defendant's first appellate counsel and the trial court appointed new counsel, that new counsel filed a PCR, successfully contending that defendant's original trial counsel had been ineffective at the sentencing stage. Consequently, defendant's original death sentence was vacated and a resentencing was ordered. After defendant's plea agreement was set aside and he was resentenced to death, his counsel filed a second PCR. In this second PCR, one of defendant's contentions, advanced for the first time, was that his former counsel had been ineffective at trial. ² The trial court denied the second PCR and held that defendant was precluded from advancing additional claims of ineffective assistance of the same counsel.

Rule 32.2 of the Arizona Rules of Criminal Procedure and A.R.S. § 13-4232 are substantially identical--both deal with preclusion in post-conviction matters. Rule 32 provides that "[a] petitioner will not be given relief ... based upon any ground ... [k]nowingly, voluntarily and intelligently not raised at trial, on appeal, or in any previous collateral proceeding." Ariz.R.Crim.P. 32.2(a)(3), 17 A.R.S.; see also A.R.S. § 13-4232(A)(3). Rule 32 further provides that "[t]he court may infer from the petitioner's failure ... to raise any ground then available to him in a previous Rule 32 proceeding ... that he knowingly, voluntarily and intentionally relinquished the right to do so." Ariz.R.Crim.P. 32.2(c); see also A.R.S. § 13-4232(C).

The trial court correctly ruled that defendant was precluded from urging new claims of alleged ineffective assistance of counsel on his second PCR. See State v. Carriger, 143 Ariz. 142, 692 P.2d 991, cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 864 (1984). The trial court could very reasonably and properly conclude that counsel's decision to raise ineffectiveness of counsel only at the sentencing stage in the first PCR was made after an analysis of former counsel's representation, and that the omission of any additional claim at that time was intentional. Certainly there was ample opportunity to raise the claim in the first PCR.

2. Admission of the Letter (Exhibit 28) and the Note (Exhibit 42)

Defendant contends the trial court erred by receiving two written documents in evidence over his objections. The documents are a letter purportedly in defendant's handwriting and bearing his signature (Exhibit 28) and a note admittedly printed and signed by him during the trial (Exhibit 42). Exhibit 28, the letter, was written to L.A., a witness in the case. If genuine, the letter is extremely damaging to defendant. ³ The prosecution possessed Exhibit 28 prior to trial. Pursuant to Rule 15.2(a)(7) of the Arizona Rules of Criminal Procedure, the state obtained a pretrial order directing defendant to provide a handwriting sample for purposes of comparison with Exhibit 28. However, defendant refused to provide a sample. The trial court found defendant in willful violation of the order and ruled that the state would be permitted to show at trial that defendant refused to submit a handwriting specimen.

At trial, in the jury's presence, the state questioned L.A., the person to whom the letter was addressed. The envelope containing the letter was addressed to her husband. L.A. testified that she received the letter from her mother-in-law. Although the letter was opened before she received it, it did not appear altered. She testified that the letter was sent from Kingman (where the defendant was incarcerated), that defendant was the only person she knew in Kingman, and that she had no reason to doubt that defendant wrote the letter. However, on cross-examination, she testified that she was not sufficiently familiar with defendant's handwriting to judge whether the letter was in fact written by defendant.

During the trial, defendant wrote a printed note to S.N., another witness (Exhibit 42). In the jury's presence, the state laid a foundation showing that the printed note was authored by defendant. The court, during arguments held out of the jury's presence, ruled Exhibits 28 and 42 admissible under Rule 901(b)(3) of the Arizona Rules of Evidence. ⁴ Defendant challenges that ruling.

Rule 901 of the Arizona Rules of Evidence sets out the requirements for authenticating documentary evidence. Rule 901, Ariz.R.Evid., 17A A.R.S. Subsection (a) of Rule 901 provides that prior to admission, the proponent must put forward "evidence sufficient to support a finding that the matter in question is what its proponent claims." Subsection (b) then sets forth various non-exclusive methods by which documents may be authenticated. Subsection (b)(3) provides that one permissible method of authentication is "comparison by the trier of fact ... with specimens which have been authenticated."

Even if we assume the testimony given by the recipient of Exhibit 28 was insufficient to authenticate it, an...