Opinion
1 CA-CR 21-0268 PRPC
05-24-2022
STATE OF ARIZONA, Respondent, v. TIMOTHY EDWARD CAMPBELL, Petitioner.
Mohave County Attorney's Office, Kingman By Eduardo R. Parra Counsel for Respondent The Stavris Law Firm PLLC, Scottsdale By Christopher Stavris Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Mohave County No. S8015CR201700890 The Honorable Derek C. Carlisle, Judge
Mohave County Attorney's Office, Kingman
By Eduardo R. Parra
Counsel for Respondent
The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Petitioner
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Cynthia J. Bailey and Judge Maria Elena Cruz joined.
MEMORANDUM DECISION
PERKINS, Judge.
¶1 Timothy Edward Campbell petitions for review from the superior court's summary dismissal of his petition for post-conviction relief. Because Campbell did not state a colorable claim of ineffective assistance of counsel, we accept review but deny relief.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Lake Havasu City Police officers stopped a stolen car in June 2017. Jannae Mahesh drove the car as Campbell, her boyfriend, sat in the front passenger seat. While conducting an inventory search of the car, an officer noticed a black duffel bag in the driver's footwell, within Campbell's reach. The officer found about five pounds of methamphetamine in the bag. Law enforcement then towed the car and conducted a more exhaustive search. They discovered a notebook listing: a series of dollar amounts; phone numbers for Western Union and Money Gram; and two email addresses containing "tcampbell" or "tim." Police arrested Mahesh and Campbell, charging both with possession of dangerous drugs for sale. Campbell had about $2,100 in cash upon arrest.
¶3 Mahesh pled guilty and was sentenced before Campbell's trial. Two officers who questioned her on the day of the arrest testified. One officer testified that Mahesh told him she borrowed the car from its owner, M.J., to drive from Oklahoma to California and that M.J. instructed her and Campbell to pick up the duffel bag in Arizona on their return trip. According to that officer, Mahesh admitted both she and Campbell knew the bag contained drugs, and she "pinched" some of the methamphetamine to smoke earlier that day. The officer recalled Mahesh telling him that Campbell and M.J. arranged for Mahesh and Campbell to pick up the duffel bag. But Mahesh claimed she alone retrieved the bag while Campbell was in a casino because "she didn't want anything bad to happen to [him]."
¶4 The other officer testified the notebook he found in the car was Mahesh and Campbell's drug ledger, which detailed amounts of cash they were to pick up from Western Union or Money Gram and later use to buy drugs. The officer also testified Mahesh first said Campbell and M.J. planned the pick-up but then changed her story, saying she and M.J. arranged it. The officer said Mahesh told him M.J. promised to give her the car if she brought back the bag. Neither officer suspected Mahesh of being impaired by drugs when they questioned her.
¶5 Campbell did not confess to any knowledge of the drugs or to any other criminal activity.
¶6 At Campbell's trial, Mahesh recanted many of her prior statements. She testified that she alone arranged to pick up the drugs, and she did so while Campbell was in the casino to hide what she was doing. She also testified Campbell knew nothing about the bag or drugs, and she could not recall what she told the officers while in custody because she was "really high at the time." Mahesh also recalled telling the officers they could find M.J.'s phone number on Campbell's phone to confirm they had permission to use the car.
¶7 The State also called the officer who found the duffel bag. The officer testified the bag was in plain view and within Campbell's reach. The State moved to admit the duffel bag into evidence, which led defense counsel to voir dire the officer. In the jury's presence, defense counsel asked about the bag's contents and instructed the officer to pull items from the bag and identify them. In the process, the officer located a coin purse containing credit cards. Defense counsel asked the officer to read the names on the cards, and one of the cards had Campbell's name on it. Defense counsel did not pursue the issue further, and the superior court admitted the duffel bag and its contents-including the coin purse and Campbell's bank card-into evidence.
¶8 Defense counsel later asked how the State's case agent knew Campbell was involved in selling methamphetamine. The case agent testified Campbell's sister-in-law told law enforcement that Campbell was selling methamphetamine. Defense counsel asked the case agent if he further investigated that claim or whether he obtained any physical evidence to substantiate her statement. The case agent responded, "[n]o, we didn't physically see the drug transaction or anything, no."
¶9 During closing arguments, the prosecutor referred to Campbell's bank card being found in the duffel bag along with his sister-in-law's statement and urged the jury to find Campbell guilty of possessing methamphetamine for sale. The jury convicted Campbell.
¶10 The superior court sentenced Campbell to 23 years' imprisonment. Campbell argued on direct appeal, among other issues not relevant here, that his sister-in-law's statement was hearsay, and that its admission violated the Confrontation Clause of the Sixth Amendment. See State v. Campbell, 1 CA-CR 19-0112, 2020 WL 1686795, at *2, ¶¶ 7-8 (Ariz. App. Apr. 7, 2020) (mem. decision). But we affirmed his conviction, holding defense counsel's questioning invited any error, and Campbell failed to show prejudice under a fundamental error analysis. Id.
¶11 Campbell timely sought post-conviction relief, arguing defense counsel provided ineffective assistance by failing to conduct a pretrial investigation and allowing the admission of his bank card and his sister-in-law's hearsay statement into evidence. Campbell contended defense counsel performed deficiently as to the duffel bag by not conducting pretrial interviews of the State's law enforcement witnesses, not seeking a pretrial viewing of the State's evidence, and "heedless[ly]" eliciting the adverse evidence. Campbell also contended defense counsel performed deficiently by not interviewing the case agent before trial and then inviting testimony about his sister-in-law's hearsay statement. Campbell further contended defense counsel failed to mitigate the damage from the adverse admission, which violated his rights under the Confrontation Clause and constituted inadmissible other-act evidence.
¶12 The State opposed Campbell's petition, arguing Campbell failed to establish prejudice. The State posited Campbell could not have prevented the bank card's admission, and the jury "could easily have found the card in the bag." The State also argued the other evidence against Campbell was "overwhelming." In reply, Campbell contended the State's failure to disclose the evidence violated Arizona Rule of Criminal Procedure 15.1 and he could have sought sanctions, including the card's exclusion.
¶13 The superior court summarily denied Campbell's petition for post-conviction relief. The court found that even though "counsel should have viewed the evidence prior to trial," Campbell did not establish prejudice because he did not present a valid claim for suppressing the card. The court further found Campbell "merely speculat[ed]" that the State did not know the card was in the coin purse inside the duffel bag and that the jury would not have discovered it during deliberations. The court also found defense counsel did not perform deficiently when he discovered the card. As to the hearsay statement, the court found defense counsel performed deficiently by eliciting the statement and not objecting to its admission. But the court concluded Campbell did not establish prejudice given the other evidence of his guilt. Campbell timely sought review of the court's ruling.
DISCUSSION
¶14 We review the superior court's summary denial of post-conviction relief for an abuse of discretion. State v. Bennett, 213 Ariz. 562, 566, ¶ 17 (2006).
¶15 A criminal defendant's constitutional right to a fair trial includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To show ineffective assistance of counsel under Strickland, Campbell must show that defense counsel's conduct fell below an objective standard of reasonableness and that he suffered prejudice. See State v. Bigger, 251 Ariz. 402, 407, ¶ 8 (2021). Because a defendant must demonstrate both deficient representation and prejudice to establish a successful claim, a court may reject the claim based on the defendant's failure to satisfy either requirement. State v. Pandeli, 242 Ariz. 175, 181, ¶ 6 (2017).
¶16 The claim is subject to summary dismissal if "the alleged facts would not have probably changed the verdict or sentence." Bigger, 251 Ariz. at 407, ¶ 9. If the defendant presents a colorable claim-i.e., one that, if true, "would probably have changed" the outcome-the defendant is entitled to an evidentiary hearing. Id. (quoting State v. Amaral, 239 Ariz. 217, 219-20, ¶¶ 10-11 (2016) (emphasis in original)). When evaluating the reasonableness of counsel's strategic decisions, the foundational inquiry is the rationale for the decision. Id. at 408, ¶ 11. We presume counsel's conduct "falls within the wide range of reasonable professional assistance" that "might be considered sound trial strategy." Strickland, 466 U.S. at 689 (cleaned up). To overcome the presumption, Campbell must show counsel's decision had no "reasoned basis" and was the result of "ineptitude, inexperience, or lack of preparation." Pandeli, 242 Ariz. at 183, ¶ 21.
¶17 Scrutiny of counsel's performance must be highly deferential and a "fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Bigger, 251 Ariz. at 408, ¶ 11 (quoting Strickland, 466 U.S. at 689). And ineffective assistance must be a demonstrable reality rather than a matter of speculation. State v. Tison, 129 Ariz. 546, 556 (1981).
¶18 Campbell asserts his counsel performed deficiently and he suffered prejudice when his counsel: (1) failed to conduct a pretrial investigation of the duffel bag, discover the bank card in the coin purse, and move for its suppression; (2) prompted the officer to pull out Campbell's bank card in the jury's presence; and (3) solicited hearsay testimony from the case agent and failed to object at trial. We are not convinced defense counsel's overall performance was deficient and, even assuming deficient performance, we hold Campbell failed to establish the verdict "would probably have changed," given the other evidence supporting the jury's verdict.
I. Pretrial Investigation
¶19 Campbell failed to attach "any affidavits, records, or other evidence" to his petition for us to assess whether Campbell's trial counsel conducted a pretrial investigation. See Ariz. R. Crim. P. 32.7(e) ("The defendant must attach to the petition any affidavits, records, or other evidence currently available to the defendant supporting the allegations in the petition."). And, even assuming that trial counsel did not conduct a pretrial investigation, Campbell has not attached evidence for us to assess whether counsel had a reasoned basis for not investigating what counsel described as a "run-of-the-mill case." See State v. Denz, 232 Ariz. 441, 445, ¶ 11 (App. 2013) (defense counsel is not required to pursue every investigative path that would not yield useful information). Because Campbell did not attach evidence to show his trial counsel did not investigate and had no "reasoned basis" for not investigating, we cannot conclude he has raised a colorable issue.
II. Bank Card
¶20 Campbell argues defense counsel had no reasoned basis to ask about the duffel bag's contents in front of the jury because he did not investigate the bag before trial. We disagree. Campbell has consistently maintained that Mahesh arranged for and picked up the methamphetamine. When defense counsel realized the duffel bag held items likely belonging to Mahesh, like makeup or the coin purse, it is possible counsel also believed the coin purse held cards tying it, and by extension the duffel bag and methamphetamine, to Mahesh alone. Defense counsel's questions suggest he was seeking to bolster Campbell's defense theory that the drugs belonged solely to Mahesh. We now know, with the benefit of hindsight, that such a course of inquiry was doomed to fail. But defense counsel arguably had a plausible theory of the events which led him to explore the bag's contents during cross-examination. The superior court properly found trial counsel's voir dire of the case agent was not deficient.
III. Hearsay Statement
¶21 We also agree with the superior court that, although defense counsel may have performed deficiently by eliciting and then failing to object to Campbell's sister-in-law's hearsay statement, Campbell was not prejudiced by its admission.
¶22 Campbell argues that without the bank card tying him to the duffel bag, and his sister-in-law's hearsay statement, the jury's verdict probably would have changed. As discussed above, Campbell offers only unsupported speculation he would have succeeded in suppressing the bank card. Even assuming he speculates accurately, he cannot establish prejudice. Without the bank card's admission and his sister-in-law's statement, the State still presented to the jury:
• Mahesh's initial statements to police that Campbell not only knew about the drug transaction, but arranged the drug pick up himself;
• Mahesh's further statements to police that Campbell had M.J.'s (the drug supplier) phone number saved in his phone;
• Campbell's proximity to the duffel bag containing almost five pounds of methamphetamine;
• officer testimony that the quantity of methamphetamine suggests an amount for sale;
• officer testimony that, based on Campbell's physical appearance, he had the impression that Campbell had been using methamphetamine;
• the drug ledger, which officers found in the car, that contained Campbell's email addresses;
• officer testimony detailing how the drug ledger furthered the purchase and transport of drugs for sale; and
• the large amount of cash Campbell was carrying, when Campbell was basically unemployed but working odd jobs and, though the two were not quite homeless, they were living in a home that was "really unliveable."
¶23 Given this record, we cannot say the outcome "would probably have changed" absent defense counsel's discovery of the duffel bag's contents at trial or his elicitation of Campbell's sister-in-law's hearsay statement. We thus hold the superior court did not abuse its discretion by denying Campbell an evidentiary hearing because he has not established a colorable claim.
CONCLUSION
¶24 We grant review but deny relief.