Opinion
No. 2 CA-CR 2013-0554-PR
08-27-2014
THE STATE OF ARIZONA, Respondent, v. EDUARDO VASQUEZ CELAYA, Petitioner.
COUNSEL Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent Lori J. Lefferts, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson 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NOT FOR PUBLICATION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. CR20063527
The Honorable Richard D. Nichols, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART
COUNSEL Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Howard and Judge Brammer concurred. KELLY, Presiding Judge:
The Hon. J. William Brammer, Jr., a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and the supreme court.
¶1 Petitioner Eduardo Celaya seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to 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. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). For the reasons set forth below, we grant review, grant relief in part, and remand for an evidentiary hearing.
¶2 Following a jury trial, Celaya was convicted of two counts of first-degree murder and was sentenced to consecutive terms of life imprisonment with no possibility of release until he had served twenty-five years on each count. We affirmed Celaya's convictions and sentences on appeal, State v. Celaya, No. 2 CA-CR 2007-0307 (memorandum decision filed Jul. 1, 2009), and denied relief on his petition for review of the trial court's denial of his first petition for post-conviction relief, State v. Celaya, No. 2 CA-CR 2011-0364-PR (memorandum decision filed Mar. 6, 2012). The Supreme Court of Arizona granted review of Celaya's petition for review, reversing the trial court's summary dismissal of his petition for post-conviction relief, vacating our memorandum decision denying relief on review of that ruling, and remanding for an evidentiary hearing "to consider evidence" regarding "Issues A and B." Following a four-day evidentiary hearing held in 2013, the court denied relief. This petition for review followed.
Issue A generally addressed claims of newly discovered evidence and Issue B focused on ineffective assistance of trial counsel.
Ineffective Assistance of Counsel
¶3 Celaya raises several claims asserting that his trial attorney, Robert Murray, was ineffective. He contends Murray failed to interview alibi witnesses before trial, investigate shoe impression evidence from the park where the murders occurred, support Celaya's alibi by using cellular telephone records documenting calls made the day before and the day of the murders, and properly advise him whether to testify at trial. Celaya asserts generally that "Murray's explanation [for his conduct] is patently incredible in every sense of the word." To establish a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below prevailing professional norms and also that the outcome of the case would have been different but for the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985).
Murray testified at the evidentiary hearing that the records for Celaya's cellular telephone "showed that . . . starting at 7:30 in the evening [the night before the murders] through 6:00 o'clock in the morning on the [day of the murders], that [Celaya] made over 100 phone calls." Murray also testified that "the phone calls show that [Celaya] was up all night. And [Celaya] told me . . . 18 or 19 of those calls were to [one of the victims]."
¶4 In its ruling following the evidentiary hearing, the trial court made the following findings regarding these claims:
This Court concludes that trial counsel did sufficiently contact enough witnesses to determine that [Celaya's] alibi lacked credibility, and had sound tactical trial strategy in his decision to not call forth any witnesses that would have revealed
[Celaya's] cell phone records or cast doubt onto [Celaya's] defense in general.
. . . .
. . . [Celaya's] disagreement as to the strategy is an insufficient basis for supporting his claim of ineffective assistance of counsel, as the challenged conduct did have a reasonable basis, in that trial counsel reasonably did not want to call forth any witnesses who were not credible and would be cross-examined, in one way or another, regarding the phone calls which [Celaya] was unable to explain.
. . . Because of contradicting stories, as well as alibis presented by [Celaya's] family and coworkers that lack credibility, this Court finds that there is no concrete alibi in [Celaya's] case. As such, there could be no ineffective assistance of counsel in failing to present an alibi defense that lacked credibility and was not concrete.
. . . .
The second main issue in [Celaya's] ineffective assistance of counsel claim is whether it was ineffective assistance for trial counsel to fail to present to the jury the fact that [Celaya] only wore cowboy boots, as no such boot prints were found at the scene of the crime.
. . . .
To support this claim [Celaya] submitted the affidavit of Leo Duffner, former homicide detective . . . , whose
expert opinion stated that none of the footprints around the victim's car on the day of the crime appeared to have been made by cowboy boots.
. . . .
. . . Here, [Celaya] has failed to show any evidence that [he] only wore cowboy boots, and further has failed to provide evidence that it was unreasonable for trial counsel to determine that he could not prove this as well. Given the inability of [Celaya], and . . . trial counsel, to prove that [Celaya] did not wear cowboy boots on the day of the crime, or that [Celaya] could not have taken off his boots in the commission of a crime, this Court finds that trial counsel was not ineffective in his failure to include this evidence at trial.
. . . The introduction of shoeprint evidence would have been circumstantial at best, and given the public nature of the park, this Court does not believe that trial counsel's failure to introduce the evidence prejudiced the outcome of the case.
¶5 Celaya argues the trial court abused its discretion by dismissing his claims of ineffective assistance of counsel, asserting the court misstated the testimony of co-workers A.N. and R.R., which he claims supported the alibi that he was at work when the victims were shot, and failing to find deficient Murray's investigation of Celaya's cellular telephone records, evidence he claims would have supported his alibi. For the reasons set forth below, we conclude the record supports the court's dismissal of Celaya's claims of ineffective assistance, particularly in light of the court's credibility findings regarding several of the potential alibi witnesses. See State v. Hess, 231 Ariz. 80, ¶ 11, 290 P.3d 473, 476 (App. 2012) (by considering credibility of prospective witness trial judge does not "'usurp[] the function of the jury'"), quoting State v. Fisher, 141 Ariz. 227, 251, 686 P.2d 750, 774 (1984). Moreover, even assuming without deciding that Murray's conduct was deficient in some respects, Celaya has not sustained his burden to show that he was prejudiced thereby. See Strickland, 466 U.S. at 687 (burden of defendant seeking relief to demonstrate how counsel's performance was deficient and how those deficiencies affected outcome of case).
Alibi Witnesses
¶6 On October 21, 2005, the two victims, M.N. and H.E., were found fatally shot in a vehicle in a Tucson park. At the time of the murders, Celaya was a superintendent at the construction company where he and A.N. worked. At the evidentiary hearing, A.N. testified that on the day of the murders he and Celaya had met at the company construction site at Las Campanas in Green Valley at "around 7:00, 8:00" a.m.; he recalled the day specifically because Celaya was wearing yellow ostrich boots and was preparing to leave town for Las Vegas after work. A.N. also testified he and Celaya had remained at the Green Valley site until "around 10:00 or 11:00 a.m." He acknowledged that he remembered "everything" that had occurred the day of the murders.
¶7 R.R., whom Celaya was training to be a construction superintendent in October 2005, testified at the evidentiary hearing that on the day of the murders he had met Celaya at a construction site called Eagle Point at "[a]bout 6:30 in the morning more [or] less," after which they had gone to Sahuarita and Green Valley (Las Campanas). When asked if he had told a defense investigator in 2011 that he and Celaya had spent the entire morning at Eagle Point, R.R. responded, "At this time I can't remember what I said to him, but it would have been for some period of time in the morning," and added that "I don't recall [that specific date] exactly." In contrast to A.N.'s testimony that A.N. had spent the entire morning in Green Valley with Celaya, R.R. acknowledged he and Celaya had remained at Eagle Point until 1:30 p.m. on the day of the murders. And, although R.R. testified that he had been with Celaya "all day," he did not recall attending the meetings in Green Valley about which A.N. had testified.
¶8 Additionally, although R.R. first testified he and Celaya had traveled from Eagle Point to Sahuarita and then to Green Valley, he later testified they had gone first to Green Valley and later to Sahuarita. When asked about his affidavit, in which he had attested that he and Celaya had gone first to Green Valley, R.R. testified that it "was written wrong," and that although he had signed it, he did not know if he had written it.
¶9 F.L., a superintendent at the construction company in October 2005, testified at the evidentiary hearing that, although he no longer recalled the day of the murders, if he had been asked about that day in 2006, he "believe[d]" he may have been able to look through records that would have helped him determine Celaya's whereabouts on that day. In contrast, at trial F.L. testified "that there were no logbooks that would tell anyone where a particular supervisor was at any point during the day." F.L. similarly acknowledged at the evidentiary hearing that he would not "necessarily know" if Celaya had failed to show up for an inspection on a given date and that he did not know where supervisors like Celaya were during the day.
¶10 Murray testified that when he had spoken with F.L. and R.R. before the trial, he had learned that Celaya was not required to "check[] in at any time. There was no way of them knowing where he was at any given time of the day." He therefore had made a "judgment call[]" to offer only evidence of records establishing that Celaya had gotten paid for the day of the murders and to show the entries in his own logbook as to his whereabouts, asserting this was a "joint decision" he had made with Celaya.
Cellular Telephone Records
¶11 Murray testified that, although he had reviewed Celaya's cellular telephone records with him before trial, Celaya had been unable to explain many of the calls on the relevant dates other than to tell Murray he had called the victims to purchase cocaine from them. Murray ultimately "felt that the phone records would be so detrimental in terms of cross-examination of witnesses, that [Celaya] made—after 7:42 in the morning October 21st . . . 67 phone calls while he was at work. And they were to at least 25 to 28 different numbers." Murray added that Celaya's final call to one of the victims, M.N., had occurred at approximately 7:42 a.m. on the day of the murders, and that Celaya had been unable to explain why he had stopped calling M.N. after that time.
¶12 Although Celaya testified at the evidentiary hearing that Murray had not shown him the telephone records before trial, he nonetheless acknowledged he "did discuss" them with Murray. He also testified that he had called M.N. several times to purchase cocaine for his upcoming trip and explained that M.B., Celaya's cousin, often assisted the victims with drug transactions. He explained that he had stopped calling M.N. after approximately 7:41 on the morning of the murders because he believed M.N. already had given his drugs to M.B. Celaya testified that he had not explained this information to Murray "with so much detail" before the trial, nor had he informed the police about M.B.'s involvement in drug transactions with the victims.
Advice Not To Testify At Trial
¶13 Celaya also contends Murray coerced him not to testify at trial, and misadvised him that the state would be permitted to present the facts related to a prior felony conviction to the jury. At the evidentiary hearing, Celaya testified that because Murray had directed him not to "speak out" or upset the judge, he did not tell the judge he wanted to testify. Murray testified that he had advised Celaya not to testify based on the "phone calls because [he] thought that [Celaya] was just going to get totally beat up on the phone calls." "[Celaya] only brought up testifying after the trial was over and he was convicted. That's when he started . . . complaining about the fact that I forced him not to testify." In its ruling dismissing this claim, the trial court concluded:
[T]his Court does not find that trial counsel interfered with [Celaya's] right to testify, nor does the Court find that [Celaya's] not testifying caused prejudice to his case, as discussed above, [Celaya] did not have a credible alibi and could not explain the
large number of phone calls that were revealed in his cell phone records.
Although this Court does agree that trial counsel gave an invalid reason (this Court believes that had [Celaya] testified, the details of his prior conviction would not have been admissible) for his advice regarding [Celaya's] right to testify, this Court does not believe that, given the totality of the circumstances and the other reasons given by trial counsel, it was improper for trial counsel to advi[s]e [Celaya] not to testify.
¶14 Based on the record before us, including the trial court's correct reasoning on Celaya's claims of ineffective assistance of counsel as set forth above, Murray's proffered trial strategy, and the court's credibility findings on the contradictory and often confusing testimony of Celaya's primary alibi witnesses, we find no abuse of discretion in the court's dismissal of Celaya's claims of ineffective assistance of counsel. Reviewing courts indulge "a strong presumption" that counsel provided effective assistance. Strickland, 466 U.S. at 689. And "[m]atters of trial strategy and tactics are committed to defense counsel's judgment." State v. Beaty, 158 Ariz. 232, 250, 762 P.2d 519, 537 (1988). Even if counsel's strategy proves unsuccessful, tactical decisions normally will not constitute ineffective assistance of counsel, State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975), and "'disagreements [over] trial strategy will not support a claim of ineffective assistance of counsel, provided the challenged conduct had some reasoned basis,'" State v. Vickers, 180 Ariz. 521, 526, 885 P.2d 1086, 1091 (1994), quoting State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987).
We also note that, contrary to Celaya's claim that the trial court improperly concluded Murray had been unable to reach A.N. before trial, it appears the court merely was summarizing the state's argument in this regard when it made this statement.
We likewise reject Celaya's argument that the trial court improperly relied on State v. Berry, 101 Ariz. 310, 313-14, 419 P.2d 337, 340-41 (1966) (alibi not established by witness's ability to account for defendant's actions during only part of time when crime alleged to have occurred). Although the court's reliance on Berry in this instance may not have been ideal, to the extent the court noted the "contradicting stories" of A.N. and R.R., combined with its credibility determination of these and other potential alibi witnesses, we find no error in the court's ultimate conclusion that a credible alibi had not been established, and that Murray was not ineffective in this regard. 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").
Newly Discovered Evidence
Firearms Evidence
¶15 Celaya next argues the trial court erred in denying an evidentiary hearing on his claim that a 2009 National Academy of Sciences (NAS) report "debunking the certainty of firearms comparison analysis" constituted newly discovered evidence pursuant to Rule 32.1(e). At a status conference held before the evidentiary hearing and at the hearing itself, the parties disputed whether the supreme court's order, which granted review as to "Issues A and B," included the firearms issue. Reasoning that some of the issues "lent themselves to an evidentiary hearing fl[e]shing out the allegations with actual testimony whereas the NAS report didn't so much," the trial court "interpret[ed] the Supreme Court's order as confining the hearing to the issues of the alibi and the confession."
At trial, two of the state's witnesses testified there was "no doubt" that a bullet found in Celaya's truck was fired by the same gun as the bullets that killed the victims.
¶16 On review, Celaya acknowledges that, although the issue statement in the petition for review filed in the supreme court "may have been clumsy[,] . . . the petition argued for a hearing based on the firearms evidence within Issue A." In his petition to the supreme court, Celaya defined "Issue A" as, "Should the trial court have conducted a hearing to evaluate the credibility of newly discovered evidence which would have presented a confession to these crimes by [M.B.], defendant's main accuser, and which would have significantly eroded other aspects of the state's main evidence?" and "Issue B" as, "Does the conduct of trial counsel in which he failed to investigate and present to the jury an airtight alibi, and further in which he failed to investigate significant aspects of the state's case constitute prejudicial ineffective assistance of counsel mandating a new trial?" Notably, Celaya not only listed the firearms issue under the summary of facts in the petition, but he devoted almost two pages of argument to that topic in the body of the petition.
¶17 In its response to the petition for review, the state asserts, "A reading of the petition for review [to the supreme court] shows that the [firearms] argument was raised and argued as part of Issue A in the petition," and maintains, "[i]f the supreme court order is read to require an evidentiary hearing on this issue, then the law of the case doctrine would appear to compel such a hearing." Essentially conceding the supreme court's order encompassed the firearms issue, the state nonetheless argues that, because the NAS report does not constitute newly discovered evidence, we should deny relief despite the absence of an evidentiary hearing.
Despite our having ordered the state to respond to the petition for review, with the exception of the firearms issue, the state instead relied on State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993), to inform us that "[t]he trial court correctly resolved" the remaining issues. However, Whipple is intended to permit a reviewing court, and not a party, to adopt the correct findings of another court. Id.
¶18 The supreme court could have but did not specify sub-parts of the issues it wanted the trial court to consider on remand. Rather, it remanded for an evidentiary hearing "as to Issues A and B." And, because Issue A includes the firearms issue, as the state has conceded, we conclude the court abused its discretion by failing to address this issue at the evidentiary hearing. Moreover, in light of the supreme court's order remanding for an evidentiary hearing "as to Issues A and B," we will not determine whether the NAS report was in fact newly discovered evidence without such a hearing. We thus grant relief and remand for an evidentiary hearing on the firearms claim.
Third Party Confessions
¶19 Finally, Celaya argues the trial court incorrectly determined that M.B.'s confessions, one to F.G. and another in the presence of G.R., did not constitute newly discovered evidence. In summary, Celaya contends that in 2007 M.B. admitted to F.G. that he and a friend had killed the victims, although F.G. did not share this information with anyone until 2010, well after Celaya's trial in 2007. Celaya also asserts G.R.'s testimony that M.B. had threatened some people with a gun at a party in 2007, stating they should leave "or else . . . he would do with them what he did with the two people at the park, that he would leave them cold," was also newly discovered evidence. A defendant presents a colorable claim of newly discovered evidence if the following requirements are met:
(1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial; (2) the [petition] must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention; (3) the evidence must not simply be cumulative or impeaching; (4) the evidence must be relevant to the case; (5) the evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial.State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989); see also State v. Andersen, 177 Ariz. 381, 387, 868 P.2d 964, 970 (App. 1993) (all elements must be satisfied to establish claim of newly discovered evidence).
¶20 In its ruling denying relief on Celaya's claim of newly discovered evidence, the trial court found that, because "[F.G.] believes he had the conversation with M.B. around 2008, which would have been after the conclusion of [Celaya's] trial . . . it is clearly not evidence that existed at the time of trial" and therefore, "the first element [in Bilke] is not met." The court then explained why the fifth element in Bilke, that the newly discovered evidence would have altered the verdict, also was not satisfied. The court noted it did not find F.G. to be a credible witness: "Given [F.G.'s] relationship to [Celaya], [F.G.'s] timing of his delivering of the confession, and [F.G.'s] inability to pick [M.B.] out of a two-man lineup, this Court does not find [F.G.'s] testimony credible." The court thus concluded, "it is unlikely that [F.G.'s] testimony would have altered the verdict at trial, as the jury would likely have come to the same conclusion." See Hess, 231 Ariz. 80, ¶ 11, 290 P.3d at 476.
¶21 Noting the confession was the purported newly discovered evidence, the trial court also rejected Celaya's argument at the evidentiary hearing that M.B.'s "guilty subconscious" satisfied the first Bilke element that the evidence existed before trial. The court then concluded, without further explanation, "The same analysis applies to the testimony of [G.R.]."
Although we cannot tell from the trial court's ruling what factors it relied on in denying the claim regarding G.R.'s testimony, we note that G.R. testified the incident at the party occurred "like [in] 2007," and he knew Celaya was on trial when the incident occurred. G.R. also testified he had interpreted M.B.'s reference to the "people at the park" to mean the victims in this case.
¶22 Because the trial court based its ruling on at least two factual errors, and because we cannot determine whether the court would have reached the same conclusion absent its mistaken belief, we grant relief on the claims of newly discovered evidence and remand for an evidentiary hearing. The court found the first Bilke factor was not satisfied because M.B.'s confession to F.G. had occurred in 2008, after the trial had concluded in 2007. However, at the evidentiary hearing F.G. testified that upon first meeting M.B. in 2007 and discussing that F.G. and Celaya were from the same town in Mexico, that F.G. knew Celaya's family, and that Celaya was in "jail," M.B. told F.G. "that it had been him and his friend who had done it." F.G. testified that the meeting with M.B. had occurred "in 2007 more or less, 2007, yes," and then affirmed two more times that it had occurred in 2007. During closing argument at the evidentiary hearing, defense counsel reaffirmed his "recollection [that M.B.'s confession to F.G.] was in 2007." The record thus establishes that M.B.'s conversation with F.G. occurred in 2007 rather than 2008, as the court found.
¶23 And, to the extent the trial court relied on F.G.'s inability "to pick [M.B.] out of a two-man lineup" in rejecting his testimony, the court again was mistaken. At the evidentiary hearing, F.G. testified that although he initially did not recall an investigator showing him photographs of M.B. in 2011, he later recalled that someone indeed had shown him photographs. And, although he first agreed he had not "recognize[d] any of the photos," he later testified he had been "mixed up with the [state's questions regarding] the photos," and confirmed that "if this guy [in the photograph] had a mustache, then it would be [M.B.]," and that, other than the difference in facial hair, he had "recognize[d] [M.B.] really well." Although F.G.'s testimony was confusing at best, the record does not support the court's finding that he had been unable to identify M.B. Therefore, in light of the court's reliance on at least two incorrect facts in denying the claim of newly discovered evidence regarding F.G., and to the extent the court relied on similar information in denying the claim regarding G.R., we remand for a new determination on Celaya's claims of newly discovered evidence related to M.B.'s confessions.
Disposition
¶24 We grant review and, for the foregoing reasons, grant relief in part. We remand for an evidentiary hearing on the firearms claim and to reconsider whether M.B.'s confessions to F.G. and G.R. constitute newly discovered evidence. We otherwise deny relief.