Opinion
No. 2 CA-CR 2017-0204-PR
10-02-2017
THE STATE OF ARIZONA, Respondent, v. JOE LOUIS CANO, Petitioner.
COUNSEL Bradley D. Beauchamp, Gila County Attorney By June Ava Florescue, Deputy County Attorney, Globe Counsel for Respondent Ramos Law Firm, Scottsdale By Paul A. Ramos 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Gila County
No. S0400CR201300139
The Honorable Gary V. Scales, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL Bradley D. Beauchamp, Gila County Attorney
By June Ava Florescue, Deputy County Attorney, Globe
Counsel for Respondent Ramos Law Firm, Scottsdale
By Paul A. Ramos
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Kelly concurred. ESPINOSA, Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Joe Cano petitions for review of the trial court's denial, after an evidentiary hearing, of his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. For the following reasons, we grant review but deny relief.
¶2 After a jury trial, Cano was convicted of continuous sexual abuse of a child and three counts of kidnapping. The trial court sentenced him to consecutive prison terms totaling sixty-two years. We affirmed his convictions and sentences on appeal. State v. Cano, No. 2 CA-CR 2014-0036 (Ariz. App. Oct. 8, 2014) (mem. decision). Cano sought post-conviction relief, claiming his trial counsel had been ineffective. The trial court denied relief. On review, however, we granted partial relief. State v. Cano, No. 2 CA-CR 2015-0439-PR (Ariz. App. Mar. 7, 2016) (mem. decision). We remanded the case for the trial court to determine whether Cano had made a colorable claim of prejudice caused by counsel's decision to forgo consultation with a child psychologist and to consider that psychologist's opinion that the testimony of the victim and his brother may have been distorted by improper pretrial interviewing and, if so, to conduct an evidentiary hearing "on this specific claim of ineffective assistance of trial counsel." Id. ¶ 10.
¶3 On remand, the trial court held an evidentiary hearing at which Cano, the attorney who had supplied an affidavit in support of Cano's petition, a clinical psychologist, and Cano's trial counsel testified. The attorney testified that, based on his partial review of the file and the victim's youth and inconsistent statements, he would have "consulted an expert" concerning the possibility of "distorted memories, false memories, false allegations, that type of thing." He opined that trial counsel's "performance was insufficient, was not reasonable" because she did not do so. The psychologist identified several events during the investigation that, in his opinion, suggested the memories of the victim and another child witness had been distorted as a result of improper interviewing techniques and were inaccurate.
¶4 Cano's trial counsel testified she "didn't feel it was necessary" to consult an expert in this case, stating she had "done hundreds of these kind of cases[,] . . . interviewed numerous experts . . .[, and had] done readings . . . regarding everything from false memories to child sexual accommodations syndrome [and] attended training on these issues." She stated she was "familiar with . . . distorted memories, distortions and false memories." She said it was "sufficient" that she identified inconsistent statements for the jury because they were "obvious" and showed the witnesses "were lying."
¶5 The trial court denied relief, concluding counsel had been adequately prepared for trial and her representation was "clearly not deficient." This petition for review followed.
¶6 Absent a clear abuse of discretion, we will not disturb a trial court's ruling on a petition for post-conviction relief. State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). And, when the court has held an evidentiary hearing, we defer to the court's factual findings unless they are clearly erroneous. State v. Sasak, 178 Ariz. 182, 186, 871 P.2d 729, 733 (App. 1993). To prevail on his claim of ineffective assistance of counsel, Cano "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6, 306 P.3d 98, 100 (App. 2013), citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "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, 707 P.2d 944, 945 (1985).
¶7 We presume counsel's decisions "'fall[] within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 444, quoting Strickland, 466 U.S. at 689. "To overcome this presumption, [Cano] was required to show counsel's decisions were not tactical in nature, but were instead the result of 'ineptitude, inexperience or lack of preparation.'" Id., quoting State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). And, "disagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis,' even if the tactics counsel adopts are unsuccessful." Id., quoting State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985) (citation omitted).
¶8 On review, Cano generally asserts that defense counsel has "a duty to consult with appropriate experts or to secure scientific testimony in defending a case." He argues that trial counsel fell below prevailing professional norms by failing to consult with and call at trial an expert who would have testified "the victim's statements were developed through coaching [and] memory distortion."
¶9 As this court has explained, trial counsel may decide not to pursue a particular investigative course, including consultation with an expert, if counsel reasonably concludes it is unlikely to yield useful information. Id. ¶ 11. The thrust of Cano's claim is that counsel here did not have sufficient information to decide whether to call an expert at trial because she did not consult with an expert. We agree that an uninformed decision by counsel to forgo investigation of a particular witness or issue is not a reasoned strategic choice. See id. ¶¶ 11-12.
¶10 Cano's argument, however, ignores trial counsel's extensive experience with sex crimes involving child victims and her testimony that she was familiar with the type of testimony a psychologist might have offered. See id. ¶ 19 (counsel fell below prevailing professional norms for failing to obtain medical expert when "he had only limited experience with medical testimony and with child abuse cases in general"). She further testified such evidence was not always necessary and she had determined it was not necessary in this case. Cano has cited no authority suggesting the trial court was required to accept the opinion of the testifying attorney that trial counsel's decision fell below prevailing professional norms. In light of trial counsel's testimony, Cano has not proven that her decision resulted from "ineptitude, inexperience or lack of preparation." Goswick, 142 Ariz. at 586, 691 P.2d at 677. Thus, the court did not err in rejecting his claim of ineffective assistance of counsel.
And, none of the cases Cano cites address circumstances comparable to those before us. For example, he cites State v. Edwards for the proposition that defense counsel must "consult with appropriate experts," but the court there concluded only that counsel should have conferred with his own psychiatric expert before the expert was interviewed by the state. 139 Ariz. 217, 220-21, 677 P.2d 1325, 1328 (App. 1983). It did not suggest counsel is required to consult with any conceivable expert before trial. Similarly, Cano cites Holsomback v. White, in which a federal court faulted counsel's failure to interview doctors who had examined the victims and found no proof of sexual abuse, and thus had missed the opportunity "to support [his client's] claim of innocence with disinterested medical testimony." 133 F.3d 1382, 1386-87 (11th Cir. 1998). But Cano ignores the court's reasoning. It specifically criticized counsel's reason for declining the interviews—that he feared "the doctors might equivocate on the stand" if called as witnesses—absent counsel having interviewed them and evaluated their testimony. Id. at 1388. As explained here, trial counsel was well aware of the nature of the testimony a psychologist might offer and had determined it was not necessary to Cano's defense.
¶11 Although we grant review, relief is denied.