Opinion
No. 2 CA-CR 2013-0429-PR
03-18-2014
THE STATE OF ARIZONA, Respondent, v. DONNY ALLEN HALES, Petitioner.
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Higgins and Higgins, P.C., Tucson By Harold Higgins 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20101414001
The Honorable Christopher Browning, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Higgins and Higgins, P.C., Tucson
By Harold Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Petitioner Donny Hales seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We find no such abuse here.
¶2 Hales was convicted after a jury trial of kidnapping, aggravated assault with a deadly weapon, disorderly conduct, and unlawful discharge of a firearm in city limits. The trial court sentenced him to concurrent prison terms, the longest of which is 15.75 years. We affirmed Hale's convictions and sentences on appeal. State v. Hales, No. 2 CA-CR 2011-0056 (memorandum decision filed May 24, 2012).
¶3 Hales then filed a petition for post-conviction relief, asserting trial counsel had been ineffective by failing to (1) "demonstrate[] the necessity for a Willits instruction," (2) assure compliance with his right to a speedy trial, and (3) adequately discuss "important issues" with him, most notably whether he should testify at trial. Hales asked that his case be dismissed, "or at the least" that his convictions and sentences be vacated and that he "have a fair trial with competent counsel." The trial court denied relief without conducting an evidentiary hearing, and this petition for review followed.
Although Hales first was represented by the Pima County Public Defender, he retained private counsel for trial. His claims of ineffective assistance of counsel involve both attorneys.
State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
¶4 Hales's convictions arose from a March 2010 incident outside a fast food restaurant in Tucson during which Hales, "'desperate . . . to reunite with his estranged girlfriend [C.], held a gun to his head, fired it in the air, and physically pulled and shoved [C.] into his truck in an attempt to talk her into coming back to him'"; Hales also "grabbed C.'s hair; dragged her outside [the restaurant]; hit her repeatedly; and pointed the gun at her, saying he would kill her." Hales, No. 2 CA-CR 2011-0056, ¶ 2.
¶5 In order to state a colorable claim of ineffective assistance of counsel, a defendant must establish that counsel's performance fell below an objectively reasonable professional standard and that the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). On review, Hales reasserts his claim that trial counsel was ineffective for failing to adequately develop evidence establishing that a surveillance videotape from the restaurant existed and that it would have been exculpatory. He maintains a Willits instruction regarding the videotape "may well have tipped the balance" in his favor, and that the trial court thus erred by denying his claim.
¶6 A Willits instruction allows the jury to draw an inference from the state's destruction of material evidence that the lost or destroyed evidence would be unfavorable to the state. State v. Fulminante, 193 Ariz. 485, ¶ 62, 975 P.2d 75, 93 (1999). A defendant is entitled to a Willits instruction when (1) the state fails to preserve accessible, material evidence that "might tend to exonerate him" and (2) there is resulting prejudice. Id. A defendant is not entitled to a Willits instruction "merely because a more exhaustive investigation could have been made." State v. Murray, 184 Ariz. 9, 33, 906 P.2d 542, 566 (1995). And, the instruction "is not appropriate if the defendant fails to demonstrate that the absent evidence would have exonerated him." State v. Broughton, 156 Ariz. 394, 399, 752 P.2d 483, 488 (1988).
¶7 In support of his argument that counsel should have been more diligent in establishing that a videotape existed, Hales attached two exhibits to his petition below: an investigation report prepared in May 2010 confirming that, pursuant to information received from the district manager of the fast food restaurant, "the video surveillance system[] only stores for 30 days," and therefore, "[t]here is no video available f[or] 3/22/10 [when the underlying incident occurred]"; and, a May 2013 affidavit of a private investigator attesting that the camera which was in place at the subject restaurant "likely" would have shown the "initial activity" of the incident.
¶8 In its order denying post-conviction relief, the trial court found Hales's claim regarding the Willits instruction precluded, noting it was "an attempt to re-litigate the same issue raised in his appeal." The court additionally found that even if not precluded, the claim was not colorable. Hales "never produced any specific evidence that the events giving rise to his arrest were ever captured on a videotape," and he "ignore[d] the fact that the State never had in its possession[] the alleged videotape" and thus "could not be responsible for its 'disappearance.'" On appeal we noted that the responding detective had testified that although she had "'inquired about'" it, she "'[n]ever actually s[aw] that there was a video.'" Hales, No. 2 CA-CR 2011-0056, ¶¶ 6, 8. And more importantly, we concluded that "based on the evidence that was presented at trial, it is at least as likely the videotape would have inculpated rather than exculpated" Hales. Id. ¶ 8.
On appeal, we affirmed the trial court's denial of Hales's request for a Willits instruction. Hales, No. 2 CA-CR 2011-0056, ¶¶ 4-8.
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¶9 To the extent the trial court found Hales's claim of ineffective assistance of counsel precluded because he was attempting to re-litigate a claim that had been finally adjudicated on appeal, the court was incorrect-even had the substantive claim been raised on appeal. See State v. Spreitz, 202 Ariz. 1, ¶ 9, 39 P.3d 525, 527 (2002) (claims of ineffective assistance of counsel can only be raised pursuant to Rule 32, not on direct appeal). However, the court also found Hales's claim to be speculative, and in light of the "quality, as well as [the] quantity" of the evidence against him, determined he had not established how he was prejudiced by counsel's allegedly deficient performance. We agree. Therefore, because we conclude the court correctly determined Hales failed to make a showing of prejudice, we need not reach the issue of whether counsel's performance was deficient. See State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006) (failure to establish either prong is fatal to ineffective assistance claim).
¶10 Hales next argues that, based on the deficient conduct of both of his attorneys, he was denied the right to a speedy trial. At a July 2010 pretrial conference, his first attorney mistakenly requested a trial date more than 150 days after Hales's May 3, 2010 arraignment. See Ariz. R. Crim. P. 8.2(a)(1) (defendant in custody entitled to trial 150 days from arraignment). In October 2010, the attorney who had been retained to represent Hales in August 2010 filed a motion to dismiss for violation of the right to a speedy trial pursuant to Rule 8, claiming the 150-day period set forth in Rule 8.2(a)(1) had run on September 30, 2010. See Ariz. R. Crim. P. 8.6 (if court determines Rule 8 time limit violated, it "shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice").
¶11 At a hearing on the motion to dismiss, the state argued Hales had waived the right to present an argument under Rule 8. Finding that the "speedy trial ran . . . on September 30," and that Hales's first attorney, who "[c]learly . . . was in error," had mistakenly informed the trial court it ran in November, the court found "the failure to object before speedy trial had run waived the issue." The court thus denied Hales's motion to dismiss. See State v. Swensrud, 168 Ariz. 21, 23, 810 P.2d 1028, 1030 (1991) (defendant required to object before expiration of speedy-trial time period to avoid waiver of Rule 8 violation).
¶12 In its ruling denying relief, the trial court found that, despite both attorneys' errors, Hales was not prejudiced by having a trial date set forty-seven days beyond the speedy trial deadline. The court noted that, had it been advised of the problem before the expiration of the Rule 8 time limit, it could have brought the matter to trial in a timely manner, continued the trial pursuant to Rule 8.4(d), or dismissed the case without prejudice, thereby permitting the state to re-file immediately. See Ariz. R. Crim. P. 8.6. However, because it was in any event "unable to identify any prejudice" to Hales, the court determined he had not sustained a claim of ineffective assistance of counsel.
¶13 On review, Hales argues, as he did in the affidavit attached to his petition below, that he "never" intended to waive his speedy trial right, maintaining that with "competent representation, there would have been a dismissal," and asserting that he suffered "great detriment" as a result of the deficient performance of his attorneys. He also contends that the court's ruling improperly "engrafted" a prejudice prong on to Rule 8.6.
¶14 It appears Hales conflates the showing of prejudice required to prevail on a speedy-trial claim and the prejudice he must show to obtain relief for ineffective assistance of counsel. In any event, he fails to describe any discernible prejudice or "detriment" stemming either from the minimal delay of his trial or from counsel's failure to timely seek dismissal. See United States v. Loud Hawk, 474 U.S. 302, 315 (1986) (defendant bears burden to show more than possibility of prejudice in order to establish violation of speedy-trial rights). Moreover, Hales fails on review to meaningfully challenge the court's finding that he had not established how he had been prejudiced. Therefore, even assuming his attorneys performed deficiently, in light of Hales's failure to establish how he was prejudiced by their performance, the court properly denied his claim.
¶15 Finally, Hales contends his trial counsel inadequately advised him regarding his decision to testify, and permitting the jury to hear about his two prior convictions was particularly prejudicial to him. In the affidavit attached to his petition below, Hales attested that his attorney had asked him for the first time on the day of trial if he wanted to testify, "forc[ing him] to make a decision on the spot" and to "testify because [he] felt the trial had been going poorly up to that time due to [his] representation."
¶16 In its ruling denying this claim, the trial court noted that the record "directly contradicted" Hales's assertion that he was unaware he "could and would be impeached on the basis of his prior felony convictions," and explained that Hales had been notified of this risk by the court. Thus, the court concluded, Hales's claim "lacks any credibility whatsoever." The court further found that Hales did not assert in his affidavit that his "decision to testify was anything other than his conscious choice," and that the court expressly had explained this very fact to him. Noting that the evidence against Hales was "overwhelming," the court correctly concluded, "assuming arguendo that this decision [to testify] and the resulting testimony was the result of deficiencies on the part of [Hales's] trial counsel (a claim that the Court finds lacking in all respects), [Hales] is unable to demonstrate any prejudice as a result." Hales has identified no error in the court's reasoning, and we find none.
¶17 Accordingly, we grant review but deny relief.