Opinion
No. 2 CA-CR 2017-0402-PR
04-20-2018
THE STATE OF ARIZONA, Respondent, v. SCOTT R. DOZIER, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Arthur Hazelton, Deputy County Attorney, Phoenix Counsel for Respondent Ballecer & Segal LLP, Phoenix By Natalee Segal And Law Office of Melody Harmon PLLC, Phoenix By Melody Harmon Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Maricopa County
No. CR2003019408001DT
The Honorable Susanna C. Pineda, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Arthur Hazelton, Deputy County Attorney, Phoenix
Counsel for Respondent Ballecer & Segal LLP, Phoenix
By Natalee Segal And Law Office of Melody Harmon PLLC, Phoenix
By Melody Harmon
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Petitioner Scott Dozier seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Dozier has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Dozier was convicted of second-degree murder. Evidence presented at the trial established Dozier had borrowed a .22 caliber rifle from a friend and used it to shoot the victim in the back of the head. The victim's body was wrapped in plastic and put in a plastic box, before ultimately being put in a shallow grave under a large industrial spool. The state presented evidence of a bullet wound to the victim's head and two projectiles in the victim's body, both of which the investigating detective claimed were .22 caliber bullets. Medical testimony established the second projectile, found in the victim's elbow, had not hit bone, but could not exclude a soft-tissue injury due to the condition of the body.
¶3 The trial court sentenced Dozier to an aggravated twenty-two-year prison term. This court affirmed his conviction and sentence on appeal. State v. Dozier, No. 1 CA-CR 05-0463 (Ariz. App. Apr. 11, 2006) (mem. decision). Dozier thereafter sought and was denied post-conviction relief, and this court granted relief in part on his subsequent petition for review. State v. Dozier, No. 1 CA-CR 12-0207 PRPC (Ariz. App. Sept. 30, 2014) (mem. decision). We remanded the case for an evidentiary hearing on Dozier's claim of newly discovered evidence relating to an undisclosed laboratory worksheet showing that the two projectiles found in the victim's body were not the same size. Id. ¶¶ 4-8. We determined that "[a] material issue of fact exists as to whether the larger projectile was connected to the murder" and that Dozier might be entitled to relief if he could establish "materiality and prejudice" relating to the withheld information. Id. ¶ 8.
¶4 At the evidentiary hearing, the forensic scientist who had created the undisclosed worksheet testified about its content, particularly that the second projectile had been larger than the first and could not have been a .22 caliber bullet, and about the limits of his testing. Another ballistics technician, on whom the detective had said he relied in testifying at trial that the projectiles were .22 caliber bullets that could not be tested for rifling marks, denied having made any such statement about the possibility of testing. But a detective who had been present at the victim's autopsy recalled the second projectile having been "something that was already in the ground" that had "stuck to the body." He also testified there were casings and other indications of target shooting in the area where the body had been found. After the hearing, the trial court denied relief, finding that "the second projectile was nothing more than desert debris unrelated to the killing of" the victim.
¶5 On review, Dozier argues the trial court erred "in its findings of facts and conclusions of law." Our review of the trial court's factual findings after an evidentiary hearing "is limited to a determination of whether those findings are clearly erroneous"; we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). And Dozier had the burden of proving his factual allegations by a preponderance of the evidence. See Ariz. R. Crim. P. 32.8(c). When "the trial court's ruling is based on substantial evidence, this court will affirm." Sasak, 178 Ariz. at 186. "Evidence is not insubstantial merely because testimony is conflicting or reasonable persons may draw different conclusions from the evidence." Id.; see also State v. Fritz, 157 Ariz. 139, 141 (App. 1988) (trial court sole arbiter of witness credibility in post-conviction proceeding).
¶6 Dozier first asserts that the state essentially changed its theory of the case during the evidentiary hearing and that the trial court erroneously "determined whether the previously undisclosed larger caliber bullet was material to the state's new theory that the second bullet was desert debris and unconnected to the murder," a theory not presented to the jury at trial. He contends the state should be estopped from asserting this "second theory" because it obtained the original conviction based on a theory that both shots were fired by Dozier from the same gun.
¶7 Contrary to Dozier's implicit suggestion, "[n]othing in Rule 32.1(e) requires the [trial] court to artificially narrow the scope of its inquiry by ignoring evidence the state undoubtedly would offer at a new trial in response to the defendant's new evidence." State v. Hess, 231 Ariz. 80, ¶ 11 (App. 2012). Thus, regardless how the state had addressed the second projectile at trial as part of its analysis, the court could consider evidence of how the state would respond to the new evidence relating to the projectile were a new trial ordered.
¶8 Dozier next argues the trial court's findings that the larger projectile did not hit the victim but was "desert debris" were clearly erroneous. But Dozier's argument on this point amounts to a request for this court to reweigh the evidence presented at the evidentiary hearing. That we will not do. See Fritz, 157 Ariz. at 141. Substantial evidence supported the court's ruling, including evidence about rock and wood found embedded in the projectile, evidence of shooting in the area around the body, and evidence of disruption to the wrapping around the body in its shallow grave. Therefore, we affirm the court's finding. See Sasak, 178 Ariz. at 186.
¶9 Dozier further asserts that the trial court erred in concluding the evidence about the second projectile was not exculpatory and material and determining he was not entitled to relief based on newly discovered evidence. To prevail on a claim that he was entitled to relief based on newly discovered evidence pursuant to Rule 32.1(e), Dozier was required to demonstrate the newly discovered material facts were discovered after the trial, he was diligent in securing them, and they "probably would have changed the verdict." See State v. Amaral, 239 Ariz. 217, ¶ 9 (2016). As this court noted in our previous decision, "information about the disparate sizes of the two projectiles was not forwarded to the prosecutor or disclosed to Dozier." Dozier, No. 1 CA-CR 12-0207 PRPC, ¶ 7. Thus, Dozier established that the information was discovered after trial and that he had been diligent in securing it. See Ariz. R. Crim. P. 32.1(e). At the evidentiary hearing, therefore, Dozier was required to establish that the evidence was material and "probably would have changed the verdict." Ariz. R. Crim. P. 32.1(e).
¶10 Newly discovered evidence warrants relief only if it "probably would have changed the verdict." Ariz. R. Crim. P. 32.1(e). Similarly, exculpatory evidence not timely disclosed by the state warrants relief only if that evidence is material, that is, if there is a "'reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.'" State v. Benson, 232 Ariz. 452, ¶ 24 (2013), quoting Smith v. Cain, 565 U.S. 73, 75 (2012). In addressing this standard, the Supreme Court observed that a reviewing court may evaluate Brady evidence in light of "any adverse effect that the prosecutor's failure to respond [fully to a request for exculpatory evidence] might have had on the preparation or presentation of the defendant's case." United States v. Bagley, 473 U.S. 667, 683 (1985). That is, "[t]he reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken." Id. Thus, when a defendant identifies an alternate trial strategy that counsel likely would have adopted had the new evidence been available at the time of trial, the trial court should evaluate whether there is a reasonable probability that strategy would have resulted in acquittal. See id. at 684.
¶11 Dozier contends the evidence "undermined the state's trial theory of Dozier as the sole shooter," "cast doubt" on other witnesses' testimony that they had not been involved, and supported his own testimony that the other witnesses had committed the murder. But, accepting the trial court's finding that the projectile was desert debris, we cannot agree it would have changed the verdict. If it were not established to have struck the victim before his death, it would not have undermined the evidence presented against Dozier.
¶12 The presence of a second projectile of a different caliber might conceivably have provided Dozier with the possibility of a defense based on the presence of a second shooter. But, we cannot say that the addition of such a defense probably would have changed the verdict. Multiple witnesses testified that Dozier had admitted murdering the victim and that he had said he shot him in the head, consistent with the mortal wound to the victim's head. The murder weapon was not found; indeed one of the witnesses against Dozier, who Dozier suggested had a role in the murder, admitted during his testimony at trial that he had destroyed the gun. Yet the jury accepted the others' testimony about Dozier's guilt. In view of the jury's acceptance of the testimony against Dozier and the relatively lesser role of ballistic evidence, Dozier has not shown that additional evidence about the second projectile probably would have changed the verdict.
¶13 Therefore, although we grant the petition for review, we deny relief.
Brady v. Maryland, 373 U.S. 83 (1963).