Opinion
No. 2 CA-CR 2014-0124-PR
10-06-2014
THE STATE OF ARIZONA Respondent, v. DAVID HILTON BRAMLETT, Petitioner.
COUNSEL Law Offices of Erin E. Duffy, P.L.L.C., Tucson By Erin E. Duffy Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
[UP]NOT FOR PUBLICATION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. CR20091858001
The Honorable Sean E. Brearcliffe, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Law Offices of Erin E. Duffy, P.L.L.C., Tucson
By Erin E. Duffy
Counsel for Petitioner
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Espinosa concurred. VÁSQUEZ, Judge:
¶1 Petitioner David Bramlett seeks review of the trial court's order summarily dismissing his petition for post-conviction relief and denying his motion to reconsider, filed pursuant to Rule 32, Ariz. R. Crim. P., asserting he is entitled to an evidentiary hearing. We will not disturb a ruling on a petition for post-conviction relief 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 Bramlett was convicted after a jury trial of two counts of child molestation arising from an incident where he twice touched then-five-year-old J.D. in her vaginal area. The trial court sentenced him to two concurrent terms of seventeen years in prison. We affirmed Bramlett's convictions and sentences on appeal. State v. Bramlett, No. 2 CA-CR 2010-0395 (memorandum decision filed Feb. 24, 2012). Bramlett then filed a petition for post-conviction relief, raising several claims of ineffective assistance of trial counsel. The court summarily dismissed his petition and denied his motion to reconsider, and this petition for review followed.
Section 13-1410(A), A.R.S., provides that "[a] person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact . . . with a child who is under fifteen years of age."
¶3 When the underlying incidents occurred in 2009, Bramlett's adult son, D.B., his girlfriend, their two sons, and the girlfriend's daughter, J.D., were living with Bramlett. Based on "some concerns" D.B. had about Bramlett, he set up a camera on his laptop computer to film Bramlett when he was alone with the children. Although J.D. was "fully potty trained" when the incidents occurred, the film captured Bramlett placing a diaper on J.D., touching her "private parts," later removing the diaper, and again touching her vaginal area. At trial, the parties stipulated to play a shorter version of D.B.'s recording, which had "been redacted to eliminate irrelevant portions." The redacted version, which lasted four minutes and forty seconds, showed the diaper incidents, while the unredacted original, which defense counsel urged the jury to watch during its deliberations, lasted one hour and fifty-six minutes.
A detective testified that the unredacted version also showed Bramlett changing the diaper of one of J.D.'s younger brothers and "utter[ing], I like wiping girls, I don't like wiping boys. Feels good."
During closing argument, defense counsel told the jury, "I urge you on as many occasions as you need . . . to watch the entire Webcam because all of the context in which everything is being done is within that hour and a half of what's going on."
¶4 On review, Bramlett argues the outcome at trial would have been different if trial counsel had shown the jury the unredacted recording at trial. He asserts that by stipulating that the jury would only view the redacted version, which had been edited to remove "irrelevant" portions, the jurors had no reason to watch the original recording during deliberations. He also maintains counsel should have objected to the admission of the written outline/summary of the original recording, which "further led the jury to believe that there was nothing of evidentiary value on the un-redacted video." He contends that recording shows that the "'touching'" occurred in the context of a make-believe diaper game initiated by J.D., and he "was pretending to wipe [J.D.] during the placing of the diaper and checking to see if [J.D.] had . . . 'tinkled', when taking the diaper off." He asserts the unredacted recording would have shown that his actions were "done in furtherance of that game and w[ere] not sexually motivated." See A.R.S. § 13-1407(E) (defense to prosecution for molestation of child that defendant not motivated by sexual interest).
¶5 In support of this argument, Bramlett attached to his petition below the affidavit of appellate counsel, in which counsel noted his "surprise[]" to learn, upon listening to the unredacted recording, that J.D. had asked Bramlett to put a diaper on her as part of a game. Because this evidence would have rebutted the state's theory that Bramlett's actions were sexually motivated, counsel opined that trial counsel had been deficient for not playing the unredacted recording for the jury.
¶6 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).
¶7 In its ruling denying relief on these claims, the trial court concluded Bramlett "fails to allege, cannot allege, that the jury did not view the entire video [during deliberations], or that the jury ignored the urging of defense counsel to watch the entirety of the video as a consequence of defense counsel's 'ineptitude, inexperience, or lack of preparation.'" And although the court suggested counsel's failure to play the unredacted recording at trial "was not tactically ideal," it nonetheless determined any deficiency was overcome by the jury's ability to consider the unredacted recording during its deliberations. Notably, the court also found, "even if the allegedly exculpatory video clearly demonstrates that playing with a diaper was the victim's idea, that fact is not relevant to a finding of guilt on the charges facing [Bramlett]."
¶8 We reached the same conclusion in a related argument on appeal:
To convict Bramlett of child molestation, the jury had to conclude that he had engaged in sexual conduct withBramlett, No. 2 CA-CR 2010-0395, ¶ 20.
J.[D. by touching her genital area as alleged. See A.R.S. § 13-1410. Whether J.[D.] previously had asked Bramlett to put a diaper on her is not relevant to that determination; nor is it relevant who had the idea that J.[D.] wear the diaper. The only relevant questions were whether Bramlett committed the alleged acts while diapering J.[D.] and whether the jury believed his asserted defense of lack of sexual motivation. See A.R.S. §§ 13-1407(E); 13-1410.
¶9 Similarly, in its ruling denying Bramlett's motion to reconsider, the trial court correctly concluded that, whether the jury had viewed the unredacted recording "in whole or in part, [Bramlett] cannot present a colorable claim that it would make any difference." The court further found that § 13-1410, the statute under which Bramlett was convicted, does not "absolve one of responsibility in situations where the child requested the contact or the child voluntarily entered into the activity during which the sexual contact occurred." Noting that it is a defense to child molestation that the defendant was not motivated by sexual interest, the court correctly concluded:
[E]ven if true that [Bramlett] was participating in the "diaper game" at [J.D.]'s request, . . . the contact of which he was convicted by the jury was not "required," . . . by the taking off and putting on of a diaper. The fact that the contact occurred at all supports the jury's finding of guilt, whether during a "diaper game," while playing "doctor," or while playing Scrabble. Any efforts on [the] part of [Bramlett]'s counsel to show the jury a video that portrays [Bramlett] interacting
with the child in a legal manner at other times does not negate the illegal nature of his sexual contact with the child. Thus, [Bramlett] cannot demonstrate a reasonable probability that the outcome of his case would have been different but for counsel's failure to show the video in whole, in court.
¶10 We also concluded on appeal that such evidence would have been cumulative. Bramlett, No. 2 CA-CR 2010-0395, ¶ 21. "While there was testimony that it may have been Bramlett's idea [to place a diaper on J.D.], other evidence indicated it was J.[D.] who asked Bramlett to diaper her. And, though not evidence, Bramlett's counsel repeatedly stated in closing argument that it was J.[D.]'s idea." Id. Accordingly, in the absence of any showing of prejudice, we find no abuse in the trial court's summary dismissal of the ineffective assistance claims related to the recordings. See State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996) ("To avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," a defendant must raise colorable claims on both parts of the Strickland test.).
¶11 Bramlett next argues trial counsel was ineffective by failing to call his former wife, A.B., as a witness at the prior acts hearing, asserting her testimony may have persuaded the trial court to preclude M.C., the victim of the prior acts, from testifying at trial. See Ariz. R. Evid. 404(c). In rebuttal to M.C.'s testimony indicating Bramlett had an aberrant sexual propensity to commit the charged offenses, Bramlett offered the transcript of a 1996 police interview of A.B. The court refused to consider the transcript, finding it was not testimony because "it was not given under oath and . . . was not subject to cross-examination." The court thereafter permitted M.C. to testify at trial.
M.C., who was twenty-nine years old at the time of the hearing, testified that A.B. had cared for her at the Bramlett home from the ages of approximately four to seven. She described incidents when Bramlett had touched her "[o]n [her] vagina" and had her "touch [his] penis." M.C. explained that A.B. was not always present or could not always see what was happening during those incidents.
¶12 In its rulings denying this claim, the trial court concluded that issues of credibility are best left to the jury and that counsel's failure to offer A.B.'s testimony at the hearing was tactical. Although we agree with the court's denial of relief, we do so for different reasons. See State v. Oakley, 180 Ariz. 34, 36, 881 P.2d 366, 368 (App. 1994) (appellate court "will affirm the trial court when it reaches the correct result even though it does so for the wrong reasons").
¶13 On appeal, we rejected a related claim that the trial court erroneously had ruled that live rebuttal testimony had been required at the evidentiary hearing. Bramlett, No. 2 CA-CR 2010-0395, ¶¶ 5, 9. Concluding the court had refused to consider the transcript of A.B.'s interview because it was unsworn, not because it was not live testimony, we determined that the court had not abused its discretion by admitting the propensity evidence and further noted that it had properly considered the factors set forth in Rule 404(c)(1)(C). Id. ¶¶ 6-7, 9. While we acknowledged in our ruling that the court had been unable to evaluate A.B.'s credibility in light of its correct decision not to consider the unsworn interview, we nonetheless concluded it did not abuse its discretion by admitting the propensity evidence. Id. ¶ 9. See, e.g., State v. Williams, 111 Ariz. 175, 177-78, 526 P.2d 714, 716-17 (1974) (uncorroborated testimony sufficient to uphold sexual misconduct conviction).
¶14 Notably, in its ruling permitting M.C. to testify at trial, the trial court expressly found M.C.'s testimony to be "quite strong based on [her] overall presentation, including memory of detail, lack of a motive to fabricate, demeanor, etc." See, e.g., State v. Aguilar, 209 Ariz. 40, ¶ 35, 97 P.3d 865, 875 (2004) (whether defendant committed prior sexual offense for purposes of Rule 404(c) "turns largely on the credibility of the witnesses"). And, even after hearing A.B.'s deposition at trial, the jury apparently did not find persuasive Bramlett's defense that his actions toward J.D. were not sexually motivated.
Bramlett ultimately deposed A.B. and presented the deposition at trial.
¶15 Additionally, pursuant to Rule 404(c)(2), the jury was given the following instruction regarding the "proper use" of the other-acts evidence:
Evidence of other acts has been presented. Evidence to rebut this has also been presented. You may consider this evidence in determining whether the defendant had a character trait that predisposed him to commit the crime charged. You may determine that the defendant had a character trait that predisposed him to commit the crime charged only if you decide that the State has proved by clear and convincing evidence that:
1) The defendant committed these acts; and
2) These acts show the defendant's character predisposed him to commit abnormal or unnatural sexual acts.
You may not convict the defendant of the crime charged simply because you find that he committed these acts, or that he had a character trait that predisposed him to commit the crime charged.
Evidence of these acts does not lessen the State's burden to prove the defendant's guilt beyond a reasonable doubt.
¶16 Therefore, even assuming counsel performed deficiently by failing to offer A.B.'s live testimony at the evidentiary hearing, Bramlett has failed to show there was a reasonable probability the trial court would have precluded M.C. from testifying at trial in any event. M.C. testified at the hearing that A.B. either had not been present during some of the instances when Bramlett had abused her or that A.B. could not at times see what was happening even when she was present. In addition, the court had not only found M.C. a credible witness, but it carefully considered the factors under Rule 404(c)(1)(C) and had concluded there was "clear and convincing evidence of the prior acts" and "the probative value of the prior acts [wa]s not substantially outweighed by the danger of unfair prejudice." Moreover, the jury was instructed how to treat the other-acts evidence.
¶17 Finally, Bramlett argues he is entitled to relief based on the cumulative effect of the previously mentioned instances of ineffective assistance of counsel, combined with the following errors:
[T]rial counsel failed to file a written response to the State's 404(c) motion; failed to object to the State's closing argument in which the State argued that [Bramlett] had molested the alleged victim more th[a]n once . . . and that [D.B.] set up the webcam to get proof . . . ; failed to request an instruction defining preponderance of the evidence for purposes of the affirmative defense of lack of sexual motivation; failed to use a neutral party, instead of the case detective, to "play" the part of [A.B.] when her deposition was read into the record . . . ; and failed to allow [Bramlett]
the opportunity to view all of the evidence against him, namely the un-redacted video.
¶18 In its ruling denying this claim below, the trial court concluded that not only had Bramlett failed to sustain his burden to show counsel was ineffective regarding the specific claims asserted, but he also had failed to show why the additional claimed errors were anything more than tactical decisions. Although it is unclear whether counsel's conduct was purely tactical in each instance, we nonetheless agree with the court's ruling. See Oakley, 180 Ariz. at 36, 881 P.2d at 368.
¶19 Other than asserting the trial court "failed to look at the errors as a whole and determine if prejudice resulted from the multiple deficiencies of counsel," Bramlett essentially has failed to explain why the court erred by denying his ineffective assistance claims. See Ariz. R. Crim. P. 32.9(c)(1)(iv) (petition for review shall contain "reasons why the petition should be granted"). We thus find no abuse of discretion in the court's denial of his cumulative error argument. Additionally, having found on appeal that Bramlett was not prejudiced by the court having failed to provide a jury instruction defining the preponderance of the evidence standard, one of the issues listed above, we necessarily find no merit in Bramlett's claim that counsel was ineffective for failing to request such an instruction. Bramlett, No. 2 CA-CR 2010-0395, ¶¶ 14-17.
¶20 For all of these reasons, we grant review but deny relief.