Opinion
No. 2 CA-CR 2013-0505-PR
04-14-2014
THE STATE OF ARIZONA, Respondent, v. JEFFREY JOSEPH HAUSNER, Petitioner.
William G. Montgomery, Maricopa County Attorney By Shaheen P. Torgoley, Deputy County Attorney, Phoenix Counsel for Respondent Janelle A. McEachern, Chandler 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NOT FOR PUBLICATION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 Maricopa County
No. CR2008007313001DT
The Honorable Roland J. Steinle, III, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
William G. Montgomery, Maricopa County Attorney
By Shaheen P. Torgoley, Deputy County Attorney, Phoenix
Counsel for Respondent
Janelle A. McEachern, Chandler
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred. ESPINOSA, Judge:
¶1 Jeffrey Hausner petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Hausner has not met his burden of demonstrating such abuse here.
¶2 Hausner was convicted after a jury trial of attempted first-degree murder and aggravated assault and was sentenced to concurrent prison terms, the longer of which was eighteen years. We affirmed his convictions and sentences on appeal. State v. Hausner, No. 1 CA-CR 09-0472 (memorandum decision filed Feb. 22, 2011). Hausner's convictions stemmed from a 2006 incident in which he had stabbed a man in the back several times while his brother, Dale, distracted the victim and Samuel Dieteman watched. Deiteman, the state's key witness, pled guilty before trial to charges arising out of an unrelated incident.
¶3 Hausner filed a notice of and petition for post-conviction relief, asserting that Dale wished to testify that Dieteman had stabbed the victim and that he, but not Hausner, had been present. Hausner acknowledged this was contrary to Dale's testimony at his own trial in which Dale claimed he had not been present, and that he knew "the substance of Dale['s] . . . testimony" before his trial. But he claimed the proposed testimony constituted newly discovered evidence that satisfied Rule 32.1(f) because Dale had been advised by his counsel not to testify while his appeal was pending and Hausner's trial counsel had refused to request a new trial based on Dale's new version of events. Thus, Hausner reasoned, "all the diligence in the world could not have permitted [him] to make use of his brother's testimony."
¶4 Hausner also asserted he had learned only recently that his daughter, K., was home the night of the stabbing and allegedly had seen Dieteman rinse a knife and put it in the dishwasher and had heard Dieteman say he "could frame anyone he wanted" and had done so previously. He claimed K.'s testimony constituted newly discovered evidence and his trial counsel had been ineffective in failing to contact K. despite Hausner's request that he do so.
¶5 Hausner also raised several other claims of ineffective assistance of trial counsel. He asserted counsel had ignored his requests to obtain medical evidence to show his left hand "has a permanent injury . . . which would make stabbing someone . . . impossible," thus contradicting Dieteman's testimony that Hausner had stabbed the victim with his left hand. He further claimed counsel should have sought a change of venue and was ineffective in failing to present an alibi defense based on telephone records showing several calls from Dale's cellular telephone to Hausner's home.
¶6 Hausner later supplemented his petition to include evidence that trial counsel had substance abuse issues near the time of Hausner's trial and an affidavit from K., in which she stated she had been home with Hausner on the night of the incident and had observed Deiteman "cleaning a knife and bragging about his ability to frame people." The trial court summarily denied relief, adopting the arguments made by the state in its response; this petition for review followed.
¶7 On review, Hausner repeats his claims, first asserting that Dale's statements exculpating him are newly discovered evidence. A defendant presents a colorable claim of newly discovered evidence pursuant to Rule 32.1(e) if (1) the evidence appears on its face to have existed at the time of trial but was discovered after trial; (2) the motion alleges 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 is not simply cumulative or impeaching; (4) the evidence is relevant to the case; and (5) the evidence is 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).
¶8 Hausner's claim based on Dale's statements fails to meet the first requirement—he admits knowing at the time of trial the "substance of Dale's . . . testimony." Hausner cites no authority suggesting we can ignore the requirement that evidence be discovered only after trial, much less that we should do so here. Permitting relief based on such testimony does nothing more than "encourage perjury to allow a new trial" once a codefendant has "determined that testifying is no longer harmful" because he may now "say whatever [he] think[s] might help [his] co-defendant, even to the point of pinning all the guilt on [himself], knowing [he is] safe from retrial." United States v. Reyes-Alvarado, 963 F.2d 1184, 1188 (9th Cir. 1992).
¶9 Hausner's claim of newly discovered evidence based on K.'s affidavit also fails. K. therein stated she had been home with Hausner the night of the incident and he only left the house with her. She further claimed that, while Hausner was asleep, Dieteman had arrived and wiped a knife clean before placing it in the dishwasher. Finally, she asserted Dieteman had told her "he could frame anyone and get away with it, that he had done so in the past." She claimed she was "afraid of" Deiteman and had not been aware that Hausner had been "tried and convicted" based on Deiteman's testimony until she visited him in prison after the conviction.
¶10 To conclude K.'s statements were plausible, the trial court would have had to accept that Hausner failed to inform his trial counsel that he had an alibi for the entire evening because he was with K. And we would have to accept K.'s claim that she had been unaware her father had been charged with crimes involving Dieteman despite her having discussed with Dale her upcoming testimony in his trial—specifically referencing Deitman's testimony that Hausner had stabbed the victim with his left hand—and telling Dale about Hausner's upcoming court date. A trial court may properly reject a claim based on newly discovered evidence when the witness's affidavit in support of that claim is wholly incredible. See State v. Serna, 167 Ariz. 373, 375, 807 P.2d 1109, 1111 (1991). In light of the patently unbelievable assertions in K.'s affidavit, the trial court did not err in summarily rejecting Hausner's claim that her testimony could change the verdict.
¶11 Hausner also repeats his various claims of ineffective assistance of counsel. "To state a colorable claim of ineffective assistance of counsel," Hausner was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate resulting prejudice, Hausner must show a reasonable probability that the outcome would have been different absent counsel's ineffectiveness. See State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985). A claim for relief is colorable, and a defendant is therefore entitled to an evidentiary hearing, when the "allegations, if true, would have changed the verdict." State v. Krum, 183 Ariz. 288, 292, 903 P.2d 596, 600 (1995).
¶12 Hausner asserts his trial counsel was ineffective in failing to interview K. despite his having "repeatedly begged" counsel to do so. But Hausner does not claim he had told counsel that K. could provide testimony in support of an alibi or that she could offer any other useful information. And in her interview with police, K. said nothing suggesting she had any knowledge relevant to the case, and indeed stated she was not afraid of Dieteman. Hausner has not identified any reason for counsel to have believed that interviewing K. would have revealed information helpful to the defense and thus has not made a colorable claim that counsel's conduct fell below prevailing professional norms. See State v. Denz, 232 Ariz. 441, ¶ 14, 306 P.3d 98, 103 (App. 2013) ("Trial counsel is not required to pursue all avenues of investigation . . . ."). And in light of the complete lack of credibility of the statements in K.'s affidavit, he has not shown prejudice. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.
¶13 Hausner next contends trial counsel was ineffective for failing to develop an alibi defense based on various telephone records purportedly showing calls from Dale's cellular telephone to Hausner's home telephone the night of the incident. But "disagreements about trial strategy will not support an ineffective assistance claim if 'the challenged conduct has some reasoned basis.'" Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101, quoting State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985). And counsel's decision to withdraw the alibi defense plainly was strategic—that decision prompted the trial court to deny the state's request to present evidence that Hausner had pled guilty in another stabbing incident involving Dale and Dieteman.
¶14 We also reject Hausner's contention that trial counsel was ineffective for failing to move for a change of venue pursuant to Rule 10.3, Ariz. R. Crim. P. Hausner cites no law or facts that suggest such a motion would have been granted in his case. Nor does he identify anything in the record suggesting he was prejudiced by his trial venue. Accordingly, he has not demonstrated resulting prejudice even assuming counsel's decision to not challenge venue had no reasoned basis. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68; Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101.
¶15 Finally, Hausner asserts he informed counsel that he had a permanent impairment to his left hand that would have made it impossible for him to have stabbed the victim to death as Dieteman had described, but that counsel had never attempted to gather any supporting medical evidence or further investigate the matter. As a general rule, a trial court is required to treat a defendant's assertions made in an affidavit as true. See State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004). And trial counsel's purported failure—absent some explanation—to investigate Hausner's alleged injury when it might have uncovered evidence to undermine the state's chief witness's version of events at least arguably falls below prevailing professional norms.
The state cites Krum, 183 Ariz. at 294-95, 903 P.2d at 602-603, for the proposition that the trial court may disregard statements in an affidavit that "lack any reliable factual foundation." But that case is readily distinguishable. In Krum, the court addressed the sufficiency of third-party affidavits claiming the victim had recanted her testimony and noted the affiants had not heard the victim recant; their affidavits were "conclusory and completely lacking in detail," for example stating only that the affiant "'has personal knowledge that the accusations were contrived and conceived in falsehood,'" without providing any other information. Id. at 294 n.9, 903 P.2d at 602 n.9. Hausner, however, presumably has personal knowledge whether he has some impairment to his hand.
¶16 But we nonetheless conclude the trial court correctly rejected this claim. Although Hausner speculates that medical records supporting his claimed impairment could be obtained, he has not provided such records or any information about his injury that could permit us to conclude such medical evidence is available. "Proof of [counsel's] ineffectiveness must be a demonstrable reality rather than a matter of speculation." State v. McDaniel, 136 Ariz. 188, 198, 665 P.2d 70, 80 (1983); cf. State v. Donald, 198 Ariz. 406, ¶ 21, 10 P.3d 1193, 1201 (App. 2000) (to warrant evidentiary hearing, Rule 32 claim "must consist of more than conclusory assertions"). Accordingly, Hausner has failed to demonstrate any prejudice resulting from counsel's conduct. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68.
¶17 For the reasons stated, although we grant review, relief is denied.