Opinion
2 CA-CR 2024-0181-PR
10-01-2024
The State of Arizona, Respondent, v. J W Carlson, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent Matthew O. Brown, Chandler Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2017155360001 The Honorable Mark Brain, Judge
Rachel Mitchell, Maricopa County Attorney
By Robert E. Prather, Deputy County Attorney, Phoenix
Counsel for Respondent
Matthew O. Brown, Chandler
Counsel for Petitioner
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Sklar and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
BREARCLIFFE, Judge:
¶1 Petitioner J W Carlson seeks review of the trial court's summary dismissal of his petition for post-conviction relief filed under 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. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Carlson has not met his burden of establishing such abuse here.
¶2 After a bench trial, Carlson was convicted of three counts of kidnapping. The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling 81.25 years. We affirmed his convictions and sentences, as modified, on appeal. State v. Carlson, No. 1 CA-CR 19-0411 (Ariz. App. Sept. 29, 2020) (mem. decision).
¶3 Carlson filed a petition for post-conviction relief in October 2023, raising two claims of ineffective assistance of trial counsel. Specifically, he argued counsel had failed to object to leading questions and had failed to present exculpatory evidence regarding the victim's motive to lie and her history of self-harm. The trial court summarily dismissed the petition, and this petition for review followed.
¶4 On review, Carlson argues the trial court erred by dismissing his claims of ineffective assistance of trial counsel. To prevail on such claims, Carlson must "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). We must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006).
¶5 Carlson maintains counsel was ineffective throughout trial for failing to object to the prosecutor's leading questions to the victim. He claims that the victim was unable to testify "definitely enough without being improperly led" and that he was acquitted on counts where the prosecutor had not asked leading questions. Many of the instances to which Carlson cites, however, are not leading but are simply yes or no questions. "Leading questions suggest an answer." State v. Payne, 233 Ariz. 484, ¶ 119 (2013). Not every question capable of a yes or no answer is a leading question, and, in any event, "reasonable latitude should be allowed" when the matter is being tried, as here, without a jury. Wackerman v. Wackerman, 16 Ariz.App. 382, 386 (1972); see also State v. Warren, 124 Ariz. 396, 402 (App. 1979) (we assume trial court only considered competent evidence in arriving at final judgment). Moreover, as the court concluded, even if counsel had objected and the court sustained those objections, "there is no reason to believe that the [s]tate would not have elicited the same testimony in substance." Accordingly, Carlson has failed to demonstrate any prejudice resulting from counsel's alleged failures, and the court did not abuse its discretion in dismissing this claim. See Bennett, 213 Ariz. 562, ¶ 21.
Carlson cites the outdated standard for a colorable claim of post-conviction relief, asserting that it is one that "might have changed the outcome." The correct standard, however, is one that if the allegations are true would probably have changed the outcome. State v. Amaral, 239 Ariz. 217, ¶ 11 (2016).
¶6 Carlson also re-asserts that counsel was ineffective for failing to "adequately utilize exculpatory evidence." The evidence he points to regarding the victim's motive to lie, however, is not exculpatory but, at best, impeaches the victim's credibility. See Exculpatory Evidence, Black's Law Dictionary (12th ed. 2024) (defined as "[e]vidence tending to establish a criminal defendant's innocence"); Trebus v. Davis, 189 Ariz. 621, 625 (1997) (evidence relating solely to witness credibility not exculpatory). Carlson further argues that counsel should have done more to explore whether the victim had inflicted her injuries on herself. He acknowledges that counsel asked the victim on cross-examination whether she had inflicted her injuries herself, but the victim denied it. He now claims that counsel could have called the victim's sister as a witness to rebut that denial. But as the trial court reasoned, counsel's strategy reasonably focused instead on the victim's many opportunities to escape from Carlson's attacks.
¶7 We are required to presume counsel provided competent representation, and tactical decisions will not give rise to a claim of ineffective assistance unless counsel's decisions had no reasoned basis. State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013). The deficiencies Carlson identified are manifestly tactical in nature, such as whether to call a certain witness and the manner and extent of cross-examination. See State v. Meeker, 143 Ariz. 256, 262 (1984) ("The decision as to what witness should be called to testify on the defendant's behalf is a tactical, strategic decision."); State v. McDaniel, 136 Ariz. 188, 198 (1983) (manner of cross-examination is strategic). As such, we cannot say the trial court erred in concluding Carlson was not entitled to relief for ineffective assistance of counsel on this basis. See Ainsworth, 250 Ariz. 457, ¶ 1.
¶8 We grant review but deny relief.