Opinion
2 CA-CR 2023-0016-PR
03-13-2023
The State of Arizona, Respondent, v. Jerry Lee Bell, Petitioner.
Dennis M. McGrane, Yavapai County Attorney By Kellen Marlow, Deputy County Attorney, Prescott Counsel for Respondent Craig Williams, Attorney at Law P.L.L.C., Prescott Valley By Craig Williams Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Yavapai County No. P1300CR201701298 The Honorable Debra R. Phelan, Judge Pro Tempore REVIEW GRANTED; RELIEF DENIED
Dennis M. McGrane, Yavapai County Attorney
By Kellen Marlow, Deputy County Attorney, Prescott
Counsel for Respondent
Craig Williams, Attorney at Law P.L.L.C., Prescott Valley
By Craig Williams
Counsel for Petitioner
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
MEMORANDUM DECISION
O'NEIL, JUDGE:
¶1 Jerry Bell seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Bell has shown no such abuse here.
¶2 After a jury trial in 2019, Bell was convicted of two counts of sexual conduct with a minor, and one count each of luring a minor for sexual exploitation, attempted sexual conduct with a minor, and sexual abuse. The offenses occurred between December 2001 and December 2003. The trial court sentenced Bell to mitigated and minimum consecutive sentences totaling thirty-one years, to be followed by lifetime probation. We affirmed his convictions and sentences and the imposition of probation on appeal. State v. Bell, No. 1 CA-CR 20-0272 (Ariz. App. May 13, 2021) (mem. decision). Bell then sought post-conviction relief, raising multiple claims of ineffective assistance of trial counsel, and requested that his claims "be expanded to the appellate attorney." The court summarily dismissed Bell's petition, and this petition for review followed.
¶3 On review, Bell repeats his claims, addressed in greater detail below, and asserts "it was necessary" for the state to attach an affidavit from trial counsel to its response to his Rule 32 petition. He also maintains he is entitled to an evidentiary hearing. "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. Under the first prong of Strickland, "we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). And under the second prong of Strickland, defendants cannot meet their burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999). A defendant is entitled to an evidentiary hearing only if he has alleged facts that, if true, "would probably have changed" his verdicts. State v. Amaral, 239 Ariz. 217, ¶ 11 (2016). Absent such a showing, his claims may be summarily dismissed. Id.
¶4 In its ruling dismissing Bell's claims, the trial court agreed with the state's response, noting that Bell's claims regarding trial counsel's conduct did not establish deficient performance, but were instead based on tactical decisions related to trial strategy, thus falling "within the purview of trial counsel." "Disagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984). Only if a decision is the product of "ineptitude, inexperience or lack of preparation," State v. Goswick, 142 Ariz. 582, 586 (1984), will the usual, "strong presumption" that counsel provided effective assistance potentially give way, Strickland, 466 U.S. at 689. The court noted, "[t]he record is replete with examples of trial counsel vetting jurors . . . conducting extensive cross-examination of witnesses, and raising objections during trial." It then concluded, "[t]he record does not support that trial counsel was inept, inexperienced, nor lacked preparation." The court also determined, therefore, that Bell had not supported his argument that appellate counsel's performance was deficient.
¶5 We first address Bell's claim that it was "necessary" for the state to attach an affidavit from trial counsel to support its argument that counsel's decisions at trial were tactical or strategic. Bell contends that, without such an affidavit, the trial court and the state were "merely mind readers," ignoring the "obvious" conclusion that counsel's conduct was deficient. He points to the language in Rule 32.9(a)(2), which provides that, in the state's response to a Rule 32 petition, it "must attach any affidavits . . . that contradict[] the petition's allegations." He also criticizes the court's conclusions based on its review of the trial record, suggesting that the court had "attempted to excuse the lack of an affidavit" and the fact that it had not personally "observed" counsel at trial.
The post-conviction judge was not the same as the trial judge.
¶6 We initially note, as the trial court correctly concluded, that the burden to establish counsel's deficient performance ultimately rests with Bell, and not the state. See Bennett, 213 Ariz. 562, ¶ 21. Nor, in any event, was the state required to respond to Bell's Rule 32 petition, much less file an affidavit. See State v. Curtis, 185 Ariz. 112, 114-15 (App. 1995), disapproved on other grounds by Stewart v. Smith, 202 Ariz. 446, ¶ 10 (2002). Moreover, to the extent Bell suggests the court erroneously relied on the trial record, we reject that argument. The court necessarily had to review and consider the trial record in order to address Bell's claims. The fact that it drew certain conclusions based on that review is not improper. Finally, insofar as the court may have mistakenly relied on State v. Bigger, 251 Ariz. 402, ¶ 14 (2021), for the proposition that the state, rather than the defendant, need not present an expert affidavit to establish that counsel's performance was based on trial strategy, we find the court's misstatement harmless in the context of this case.
¶7 Bell next argues the trial court erroneously rejected his argument that trial counsel should have called an expert witness to counter the testimony of Wendy Dutton, the state's cold expert. Although Bell contends Dutton's testimony went "essentially unchallenged," he nonetheless acknowledges that trial counsel cross-examined her, but asserts that exercise was "woefully insufficient."
On review, Bell cites State v. Starks, 251 Ariz. 383 (App. 2021), in support of his argument, an opinion that our supreme court ordered depublished several months before Bell filed his petition for review, State v. Starks, 253 Ariz. 1 (2022). We thus do not consider it. See Ariz. R. Sup. Ct. 111(c)(1)(C).
¶8 Directing us to his own affidavit, which he included with his Rule 32 petition, Bell asserts trial counsel told him he "didn't believe in expert witnesses" and that "he would not use" one. However, the record shows that in a November 2019 email correspondence from trial counsel to Bell, counsel explained, "we already discussed how there are no issues in your case that both lend itself to expert witnesses and where the laws allows for it." Other than Bell's statement in his own affidavit that counsel "didn't believe in expert[s]," a statement the record does not appear to support, Bell provided no expert affidavits or other evidence suggesting that trial counsel's conduct in this regard fell below reasonable standards. See Ariz. R. Crim. P. 32.7(e).
¶9 Whether to call an expert witness, the manner of cross-examination, and questions of trial strategy are generally tactical decisions that rest with counsel. See Meeker, 143 Ariz. at 262 (witnesses); State v. McDaniel, 136 Ariz. 188, 198 (1983) (cross-examination); Bigger, 251 Ariz. 402, ¶ 17 (trial strategy). Here, trial counsel not only explained to Bell in detail why he was calling certain witnesses to testify on his behalf, but he cross-examined Dutton extensively at trial. Nor do we find persuasive Bell's suggestion that merely because Dutton is an experienced expert witness, counsel was deficient for failing to retain an expert to counter her testimony. And, even assuming without finding that counsel should have retained such an expert, Bell has not shown that he was prejudiced by counsel's failure to do so.
¶10 Bell next argues trial counsel should have addressed his "mental deficits" before trial, rather than requesting a mental health evaluation under Rule 26.5, Ariz. R. Crim. P., in preparation for sentencing. The trial court granted Bell's initial request for an evaluation as well as his successive request for a neuropsychological evaluation. Based on the reports from those evaluations and the presentence report, the court determined Bell was competent both during trial and for purposes of sentencing. Bell argues, however, that because the confrontation call with the victim, which was played for the jury, contributed significantly to his convictions, counsel had been ineffective for failing to call an expert to address the influence of his traits for agreeability and impulsivity on his conduct during the call.
The author of the neuropsychological evaluation noted that Bell "definitely has some cognitive impairment and current emotional adjustment difficulties, but if provided with time to consider and assess the information is able to do so accurately."
The author of the neuropsychological evaluation stated that Bell's "mental condition often includes an increased degree of impulsivity."
¶11 Notably, in a December 4, 2019 email from trial counsel to Bell, counsel specifically discussed "draw[ing] the sting" regarding Bell's admissions during the confrontation call, as well as making "strategic choices" concerning other trial topics. Counsel further stated, "we also need to discuss the issue of you always taking the blame when you are accused, and your intellectual limitations which might have made you not understand what was being said during the confrontation call." Taken in this context, the record supports the trial court's finding that counsel's treatment of the confrontation call at trial, including not calling an expert witness, was not the product of "ineptitude, inexperience or lack of preparation," Goswick, 142 Ariz. at 586, but was instead a reasoned, strategic decision.
¶12 Bell also argues trial counsel failed to prepare him to testify at trial. He points out that counsel declined the trial court's offer to provide additional time for counsel to meet with Bell before he testified by stating, "Judge, we're as ready as we'll ever be." Bell asserts counsel's response proved "a cynicism and lack of preparation." However, as we previously noted, correspondence between trial counsel and Bell shows that before trial, counsel considered and discussed with Bell trial strategy, including his own testimony. Moreover, Bell has not established that counsel failed to prepare him to testify by directing us to specific testimony showing he was unprepared, much less explain what would have been different if counsel had spent more time with him. Nor does the record reflect that Bell had difficulty answering questions at trial.
Similarly, at a hearing held pursuant to State v. Donald, 198 Ariz. 406 (App. 2000), Bell did not appear to have any difficulty responding to the trial court's questions or understanding the proceedings.
¶13 Bell next asserts trial counsel had been ineffective for failing to raise a claim based on Batson v. Kentucky, 476 U.S. 79 (1986), that the state had improperly used its peremptory strikes to remove several male jurors, resulting in an all-female jury in this case involving a female victim. See id. at 85-86 (defendant has "right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria"); see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994) (gender valid basis for Batson claim). Bell points out that "the record of the Peremptory Challenges showed that half of the state's strikes were used to strike male jurors, and [trial counsel] inexplicably struck a male juror, which resulted in an all female jury."
Although the peremptory strikes were not transcribed, a case information sheet documenting those strikes is part of the record. It appears the state also struck three female jurors and defense counsel struck five female jurors.
¶14 Although we must reverse the conviction when the denial of a Batson claim is successfully challenged on appeal, see Batson, 476 U.S. at 100, Bell's argument appears to presuppose that a Batson challenge would have been successful if raised by his trial counsel. Even assuming, without deciding, that Bell has demonstrated his counsel should have raised a Batson challenge, that alone is not sufficient to show prejudice. He must also show a reasonable probability that a Batson challenge would have succeeded. See Strickland, 466 U.S. at 694 (to establish prejudice, defendant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); see also Batson, 476 U.S. at 100 & n.24 (state must provide "neutral explanation" for strikes if defendant makes prima facie showing strikes improperly motivated; in event of successful challenge, trial court may "discharge the venire and select a new jury from a panel not previously associated with the case" or "disallow the discriminatory challenges" and reinstate challenged jurors). Bell has not made a colorable showing of such a probability.
¶15 A defendant has no right to a jury partially composed of persons of his own gender, only to a jury selected by nondiscriminatory criteria. See Batson, 476 U.S. at 85-86. Bell has identified nothing in the record suggesting the state lacked a gender-neutral reason to strike three men from the panel. And, as the trial court noted in its ruling below, the record shows that trial counsel thoroughly participated in the voir dire selection of the jury. In summary, the record provides no basis to support Bell's assertion of purposeful gender-based discrimination by the state, and, therefore, no basis to conclude counsel should have raised an objection based on a violation of Batson or that such an objection would have been successful.
¶16 Bell next argues trial counsel had been ineffective for failing to visit the scene of the offenses to obtain evidence regarding a futon in the room where some of the abuse occurred. He maintains counsel should have done further investigation, including taking photographs and measuring the subject area to counter the victim's hand-drawn diagram and her testimony that the abuse occurred on a futon in that area. He contends that if counsel had adequately challenged the victim's testimony that the futon was open during the incident, her credibility would have been at issue. However, not only did counsel extensively cross-examine the victim and her sister, but as Bell acknowledges, several other witnesses testified either that there was not space for a futon or that there was no futon in the area where the abuse occurred. Ultimately, the question whether the incident on the futon occurred as described by the victim was one of credibility for the jury to determine. See State v. Cox, 217 Ariz. 353, ¶ 27 (2007).
¶17 Bell's claims of ineffective assistance are contradicted by the record and were properly dismissed without an evidentiary hearing. See State v. Jenkins, 193 Ariz. 115, ¶ 15 (App. 1998). Bell did not provide an affidavit from an expert witness to support his claims or otherwise show that counsel's decisions, even if ultimately unsuccessful, were the result of a lack of experience or preparation. Bell has provided no evidence that competent counsel necessarily would have done anything differently. We thus cannot say the trial court abused its discretion in dismissing his petition. See Roseberry, 237 Ariz. 507, ¶ 7 (reviewing court "will affirm a trial court's decision" on petition for post-conviction relief "if it is legally correct for any reason").
¶18 Finally, to the extent Bell intends to reassert on review that his claims of ineffective assistance of trial counsel should be "expanded" to appellate counsel, we reject that argument. Because Bell has not established that the trial court abused its discretion by summarily dismissing his claims as to trial counsel, we need not address appellate counsel's conduct in regard to those same claims.
¶19 Accordingly, we grant review but deny relief.