Opinion
No. 2 CA-CR 2017-0303-PR
02-01-2018
THE STATE OF ARIZONA, Respondent, v. WALTER DONTE CAMPBELL, Petitioner.
COUNSEL The Law Offices of Henry Jacobs, PLLC, Tucson By Henry Jacobs 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NOT FOR PUBLICATION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 Pima County
No. CR20151024001
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL The Law Offices of Henry Jacobs, PLLC, Tucson
By Henry Jacobs
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Walter Campbell seeks review of the trial court's order summarily denying his petition for post-conviction relief. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Campbell has not shown such abuse here.
¶2 After a jury trial, Campbell was convicted of possession of a firearm by a prohibited possessor and sentenced to a 4.5-year prison term. His conviction stemmed from the discovery of a pistol in the bedroom of his apartment. We affirmed his conviction and sentence on appeal. State v. Campbell, No. 2 CA-CR 2015-0477 (Ariz. App. Aug. 31, 2016) (mem. decision).
¶3 Campbell then sought post-conviction relief, arguing his trial counsel had been ineffective. Specifically, he claimed counsel should have interviewed a police officer about Campbell's comment during booking that, when he would be charged with prohibited possession of a firearm, stated, "that's going to get me." He further asserted that counsel should not have engaged in the following colloquy with the officer about the statement (to which the officer had testified during direct examination):
Q: Was it, That's going to get me? Or That's going to get me?
A: It was, That's going to get me or That one is going to get me or That is the one that's going to get me.
. . . .
Q: Do you know whether he was saying it in disbelief that he couldn't believe you would charge him with a gun that wasn't his?
A: I don't believe that's the case, no.Last, Campbell asserted his counsel had rendered ineffective assistance by, in a leading question, acknowledging the gun had been found under Campbell's pillow in the apartment's bedroom and by asserting during his opening statement that Campbell and a woman staying in the apartment, M.S., were not romantically involved. He claimed this conduct "contradicted the defense theory and resulted in assuring [his] conviction."
Q: How do you know that?
A: Just his demeanor.
Q: You're saying it was a confession. Is that what you're saying?
A: Yes.
Q: That he confessed to having the gun?
A: Yes.
Q: That it was his gun?
A: He said, That's going to get me. That's the way it sounded.
Q: And you took it as a confession?
A: Yes.
¶4 The trial court summarily denied relief, stating it "does not need to inquire into counsel's performance" because Campbell had not shown prejudice. It noted that nothing indicated that questioning the officer about Campbell's statement would have yielded useful information, that Campbell's statement to the officer was in evidence irrespective of counsel's questioning, and that counsel successfully elicited testimony that Campbell "was not the only one with access to all the areas of the house." Thus, the court concluded, "[a]ll of the prejudicial evidence was already elicited and presented to the jury by the State." This petition for review followed.
¶5 On review, Campbell repeats his allegations that counsel was ineffective during trial. He again asserts that counsel's conduct eliminated any "chance of acquittal" because it undermined a "lack of constructive possession argument." To state a colorable claim of ineffective assistance, "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); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To demonstrate prejudice, Campbell must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Kolmann, 239 Ariz. 157, ¶ 9, quoting Hinton v. Alabama, ___ U.S. ___, ___, 134 S. Ct. 1081, 1089 (2014). "In deciding an ineffectiveness claim, this court need not approach the inquiry in a specific order or address both prongs of the inquiry if the defendant makes an insufficient showing on one." State v. Salazar, 146 Ariz. 540, 541 (1985).
Campbell has abandoned his claim that counsel should have interviewed the police officer about his statement.
¶6 Even assuming, without deciding, that Campbell has made a colorable claim that counsel's conduct fell below prevailing professional norms, we agree with the trial court that he has not made a colorable showing of prejudice. As to counsel's cross-examination of the officer, Campbell asserts that his statement, standing alone, was "vague" or "meaningless," and that eliciting testimony that the statement was a "confession" rendered it prejudicial. But Campbell ignores that counsel's questioning also introduced to the jury the possibility that his statement was not a confession at all and, instead, was a statement of "disbelief." The jury was not required to accept the officer's characterization of Campbell's statement.
¶7 And, even absent counsel's cross-examination, Campbell has not shown there is a reasonable probability he would have been acquitted. The state presented evidence that the pistol was found under a pillow in the bedroom of an apartment rented solely in his name and that none of the possessions in the bedroom obviously belonged to a female. In light of that evidence, there is little chance the officer's characterization of Campbell's statement tipped the scales against him.
¶8 For similar reasons, we reject Campbell's claim of prejudice stemming from counsel's statements acknowledging that the gun was "found under Campbell's pillow" and that Campbell and M.S. were not romantically involved. Campbell asserts that, "but for" these statements, the state "would not have satisfied its burden of proof that [he] knew of the existence of the gun under the pillow." The record does not support this assertion. As we noted above, the state presented evidence that the gun was found in the bedroom of Campbell's apartment. It was defense counsel who introduced the suggestion that M.S. lived in the apartment and had access to Campbell's bedroom. Although the individual statements identified by Campbell appear unhelpful to his defense, they are unlikely to have influenced the outcome.
To the extent Campbell suggests the state was required to show he had exclusive access to the bedroom to establish possession, he is mistaken. "[U]nder a theory of constructive possession, two or more persons may jointly possess a prohibited object; possession need not be '[e]xclusive, immediate and personal.'" State v. Ingram, 239 Ariz. 228 ¶ 22 (App. 2016), quoting State v. Gonsalves, 231 Ariz. 521, ¶ 9 (App. 2013) (alterations in Gonsalves).
¶9 Campbell also suggests counsel's conduct during trial was such that he did not "subject the State's case to the crucible of meaningful adversarial testing." When "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," the adversarial process itself is "presumptively unreliable" and no showing of prejudice is required. United States v. Cronic, 466 U.S. 648, 659 (1984). Counsel's failure, however, "must be complete." Bell v. Cone, 535 U.S. 685, 697 (2002). Campbell has not developed any argument that situation is present here or cited any comparable authority. Thus, we do not address this claim further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶10 We grant review but deny relief.