Opinion
No. 2 CA-CR 2018-0142-PR
09-06-2018
THE STATE OF ARIZONA, Respondent, v. TY COLTON MORENO, Petitioner.
COUNSEL Harold L. Higgins PC, Tucson By Harold Higgins 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NOT FOR PUBLICATION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. CR20131195001
The Honorable Kenneth Lee, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Harold L. Higgins PC, Tucson
By Harold Higgins
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Ty Moreno seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Moreno has not shown such abuse here.
¶2 Moreno's first trial ended in a mistrial after a detective testified that an unavailable witness had identified Moreno in a lineup. Moreno filed a motion to bar retrial on double jeopardy grounds, which the court denied. At Moreno's second trial, the detective testified only that he had received information from witnesses that led him to suspect Moreno, thus leading to his placement in a lineup that was presented to a different witness than the hearsay identification central to the mistrial in the first trial. The trial court overruled Moreno's objection. The jury found Moreno guilty of criminal damage, endangerment, third-degree burglary, theft of a means of transportation, and two counts of aggravated assault. The court sentenced him to concurrent and consecutive prison terms totaling 26.5 years. On appeal, Moreno argued only that the court had erred in denying his motion to bar retrial; we rejected that argument and affirmed his convictions and sentences. State v. Moreno, No. 2 CA-CR 2015-0322, ¶¶ 1, 15 (Ariz. App. Mar. 10, 2017) (mem. decision).
¶3 Moreno sought post-conviction relief, asserting his appellate counsel had been ineffective by failing to "question the admissibility of hearsay in the second trial which should have resulted in a mistrial" and "use the prejudicial hearsay in the second trial . . . to bolster the argument that a second trial should have been precluded." The trial court summarily denied relief, determining inter alia that the challenged testimony was not hearsay, citing State v. Roper, 140 Ariz. 459 (App. 1984). This petition for review followed.
¶4 On review, Moreno repeats his claims of ineffective assistance of appellate counsel. "To state a colorable claim of ineffective assistance of counsel, 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); see also Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016). "To establish deficient performance, a defendant must show that his counsel's assistance was not reasonable under prevailing professional norms, 'considering all the circumstances.'" Kolmann, 239 Ariz. 157, ¶ 9 (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). To show prejudice, Moreno "must offer evidence of a reasonable probability that but for counsel's unprofessional errors, the outcome of the appeal would have been different." State v. Herrera, 183 Ariz. 642, 647 (App. 1995).
¶5 Moreno argues the trial court erred in relying on Roper in determining the detective's statement was not hearsay and, thus erred in determining counsel was not ineffective in failing to raise this issue on appeal. In Roper, this court summarily rejected a claim that an officer had offered improper hearsay testimony implicating the defendant where the officer had "merely stated that based on information he received, certain photos were placed into a photographic lineup for presentation to the various victims." 140 Ariz. at 463-64.
¶6 Moreno claims Roper is distinguishable because the detective's testimony here "identifie[d] talking to witnesses" that led to a suspect instead of merely "information" that aided the officer in developing a photographic lineup. But even if we agreed Roper is meaningfully distinguishable, Moreno has identified no evidence or authority suggesting that any competent appellate attorney necessarily would have raised this claim. See Kolmann, 239 Ariz. 157, ¶ 9. Nor has Moreno meaningfully sought to establish prejudice: he has not developed an argument that a mistrial would have been required nor addressed the prejudicial effect of the allegedly improper testimony in light of the overwhelming evidence of his guilt—most notably that Moreno's DNA was found on the steering wheel of the stolen vehicle used in the aggravated assaults and the fact that Moreno was identified by a police officer in a photographic lineup as the assailant. See Herrera, 183 Ariz. at 647. The trial court was correct to summarily reject this claim.
Indeed, Moreno has cited no Arizona authority in support of his argument that the officer's testimony constituted hearsay, instead relying on distinguishable federal cases. See, e.g., United States v. Lopez, 340 F.3d 169, 176-77 (3rd Cir. 2003) (testimony that official received information about defendant's drug possession was hearsay offered for truth in "absence of any direct evidence that [defendant] had possessed the prohibited object" and when there "clearly were alternative means available . . . to establish the factual context"); United States v. Meserve, 271 F.3d 314, 320 (1st Cir. 2001) (hearsay testimony implicating defendant not necessary to explain why detective had driven by defendant's house); United States v. Evans, 216 F.3d 80, 85 (D.C. Cir. 2000) (hearsay evidence improper when purportedly introduced to show defendant "had not been improperly targeted or selectively prosecuted"); United States v. Hilliard, 569 F.2d 143, 144 (D.C. Cir. 1977) (hearsay explanation for defendant's placement in photographic lineup improper because of "repeated[] insinuat[ions] that information obtained from unknown witnesses identified the robber [as the defendant]"). And, those cases are not binding on the trial court or this court. See State v. Swoopes, 216 Ariz. 390, ¶ 35 (App. 2007) (federal circuit court decisions not binding on Arizona courts).
¶7 Moreno also contends counsel should have argued on appeal that the detective's testimony demonstrates the state's purported misconduct was deliberate. See generally Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984) ("intentional conduct which the prosecutor knows to be improper and prejudicial" relevant to double jeopardy analysis following mistrial). He has not, however, cited any authority for the proposition that we should evaluate a trial court's denial of a pretrial motion to preclude retrial based on events occurring at the subsequent trial. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review). Nor has he cited any authority or evidence suggesting any competent appellate attorney would have raised such an argument. See id.; see also Kolmann, 239 Ariz. 157, ¶ 9. Thus, this claim of ineffective assistance also fails.
¶8 We grant review but deny relief.