In State v. Smith , the Supreme Court of Arizona held that an officer reasonably seized "the contents of Smith’s pockets which were bulging with shotgun ammunition." 136 Ariz. 273, 665 P.2d 995, 998 (1983) (en banc). And in Colyar , the Supreme Court of Illinois ruled that an officer who saw ammunition in a car "could reasonably suspect the presence of a gun, thus implicating officer safety," and could seize the ammunition.
In State v. Encinas, 132 Ariz. 493, 496-97, 647 P.2d 624, 627-28 (1982), we decided this issue contrary to appellant's position. We have affirmed our position since then, see State v. Berndt, 138 Ariz. 41, 45, 672 P.2d 1311, 1315 (1983); State v. Smith, 136 Ariz. 273, 277, 665 P.2d 995, 999 (1983), and continue to do so today. II. ENMUND FACTORS
Counsel's instruction to the probation officer was clearly within the wide range of professionally competent assistance, given defendant's stated desire not to have mitigating evidence presented in his behalf, and his tendency to volunteer damaging statements like those made to the trial judge at the hearing. Contrary to defendant's argument, this case is not like State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983). The defendant in Smith would have testified in mitigation that he did not intentionally shoot the victim, but for erroneous legal advice from his counsel as to the admissibility of such statements in any subsequent legal proceeding.
After the verdict was returned, Chaney's trial counsel advised Chaney not to talk with the person who was preparing the presentence report. Chaney now claims trial counsel was ineffective, relying on State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983). We think Chaney's trial counsel was not ineffective and Chaney's reliance on Smith is misplaced.
We have rejected the assertion of a right to jury in sentencing. See State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983); State v. Gretzler, 135 Ariz. 42, 659 P.2d 1, cert. denied, ___ U.S. ___, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). INTENT TO KILL
¶16 Next, Father argues the court violated his due process rights by precluding his adult son, a child from a prior relationship, from testifying. A trial court has considerable discretion in determining the relevance and admissibility of evidence, State v. Smith, 136 Ariz. 273, 276 (1983), and may exclude irrelevant or duplicative evidence, Ariz. R. Evid. 402, 403. ¶17 Father asserts his adult son's testimony would have been relevant to "make significant connections of the inappropriate exposure [the adult son] experienced [with Mother], and how he believes the same building blocks are being built around [T.W.] as they were [with] him."
We view the facts in a light most favorable to sustaining the trial court's ruling. See State v. Smith, 136 Ariz. 273, 275, 665 P.2d 995, 997 (1983). We review de novo the court's ultimate legal determinations such as whether police had a reasonable suspicion of criminal activity that justified an investigatory stop and whether the stop constituted a de facto arrest.
ted States v. Ward, 23 F.3d 1303 (8th Cir. 1994) (officer merely frisked defendant's outer clothing until he felt cylindrical objects which he believed were shotgun shells; officer justified in reaching into pocket to retrieve shells);Scott v. State, 877 P.2d 503, 509 (Nev. 1994) (during justified stop and frisk, officer conducting frisk felt shotgun shells in suspect's pocket; reasonable for officer, as precautionary measure, to retrieve and separate weapons or ammunition from suspect during course of Terry stop and frisk); People v. Lewis, 507 N.Y.S.2d 80, 81 (1986) (ammunition recovered during frisk properly admitted into evidence at trial because officer had reasonable basis to believe defendant might be armed was properly admitted into evidence at trial), appeal denied, 506 N.E.2d 548 (1987); State v. Moton, 733 S.W.2d 449, 451 (Mo. Ct. App. 1986) (where pat-down search of suspect held reasonable to protect officer safety, admission of 13 bullets recovered by search also proper); Arizona v. Smith, 665 P.2d 995, 998 (Ariz. 1983) (because police radio call told officers they might confront shotgun, search and seizure of shotgun shells justified underTerry). Here, however, Officer Locke discovered the bullet after he completed his pat-down search for weapons.
This fundamental error review, the Petitioner states, includes review of the proficiency of counsel, as the right to counsel is a fundamental right. See Arizona v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992) (en banc), cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992); Arizona v. Sorrell, 132 Ariz. 328, 645 P.2d 1242 (1982); Arizona v. Smith, 136 Ariz. 273, 279, 665 P.2d 995, 1001 (1983) (en banc) (holding that ineffective assistance of counsel at sentencing is within fundamental error review). Therefore, the Petitioner concludes that he has fairly presented his ineffectiveness claims to the state's highest court, who reviewed its merits and implicitly denied the claims.
Moreover, numerous recent state court opinions have rejected similar arguments. See, e.g. State v. Smith, 136 Ariz. 273, 665 P.2d 995 (1983); People v. Kubat, 94 Ill.2d 437, 69 Ill.Dec. 30, 447 N.E.2d 247, cert. denied, ___ U.S. ___, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983). The United States Supreme Court stated in Pulley v. Harris, ___ U.S. ___, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), that only some form of meaningful appellate review is necessary to safeguard against arbitrary and capricious sentencing.