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State v. Garcia9/20/1990
nt, in context, did not require reversal because prosecutor's misconduct did not affect the jury's ability to judge the evidence fairly). The jury was instructed that the charges against the defendant were not evidence; that what the lawyers said was not evidence, and that defendant was presumed innocent. The state's case against the defendant was corroborated in large part by civilian witnesses with no apparent motive or bias. The cocktail waitress testified that the defendant and his party ordered $72.00 worth of alcoholic beverages. A member of the defendant's party testified that defendant consumed at least two, twenty-four ounce cans of beer and two "shots" of liquor. By his own admission, defendant had consumed at least two, twenty-four ounce cans of beer and one "shot" of liquor. Other evidence indicated that four rounds of one-ounce "shots" had been ordered for the defendant's party. The facts surrounding the circumstances of the accident were basically uncontroverted. Thus, even if the prosecutor's remarks were erroneous, no objection was made and we cannot find fundamental error.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that trial counsel was ineffective because he failed to move to suppress the blood sample taken from him at the hospital. He argues that there is nothing in the record to indicate that the defendant's consent, executed at the hospital, was voluntary.
Recently, in State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (1989), the supreme court held that before the appellate court will consider an ineffectiveness assistance of counsel claim, defendants must present the question to the trial court pursuant to Rule 32, Arizona Rules of Criminal Procedure. In State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989), the supreme court stated:
We will not reverse a conviction on ineffective assistance of counsel grounds on direct appeal absent a separate evidentiary hearing concerning counsel's actions or inactions. Only where we may clearly determine from the record that the ineffective assistance claim is meritless will we elect to consider the issue on direct appeal.
In this case, the defendant has not presented this issue to the trial court by way of Rule 32 and we decline to address the merits of his claim.
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