Opinion
2 CA-CR 2023-0128-PR
02-15-2024
The State of Arizona, Respondent, v. Baudelio Rodriguez, Petitioner.
Laura Conover, Pima County Attorney By Tai Summers, Deputy County Attorney, Tucson Counsel for Respondent Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County Nos. CR20182029 and CR20182501 (Consolidated) The Honorable Howard Fell, Judge Pro Tempore
Laura Conover, Pima County Attorney By Tai Summers, Deputy County Attorney, Tucson Counsel for Respondent
Megan Page, Pima County Public Defender By David J. Euchner, Assistant Public Defender, Tucson Counsel for Petitioner
Judge Kelly authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Eckerstrom concurred.
MEMORANDUM DECISION
KELLY, JUDGE:
¶ 1 Petitioner Baudelio Rodriguez seeks review of the trial court's ruling, after an evidentiary hearing, 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 abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Rodriguez has not met his burden of establishing such abuse here.
¶ 2 After a jury trial, Rodriguez was convicted of twenty-two counts of sexual exploitation of a minor, three counts of sexual conduct with a minor, and two counts of molestation of a minor. The trial court sentenced him to twenty-seven consecutive terms of seventeen years each, resulting in a total prison sentence of 459 years. This court affirmed his convictions and sentences on appeal. State v. Rodriguez, No. 2 CA-CR 2019-0219 (Ariz. App. July 22, 2020) (mem. decision).
¶ 3 Thereafter, Rodriguez filed a notice of post-conviction relief, and the trial court appointed counsel. In his subsequent petition, Rodriguez argued his trial counsel had been ineffective in failing to seek removal of a juror from the panel for cause or thereafter exercising a peremptory strike on that juror, and that his appellate counsel had been ineffective in failing to raise that issue on appeal. The juror, M.H., retired from the Tucson Police Department (TPD), where he had worked most recently as the forensic division administrator, the year before Rodriguez's trial. Relying on A.R.S. § 21-211 and State v. Eddington, 228 Ariz. 361 (2011), Rodriguez argued that M.H. should have been disqualified because he "had a direct interest in finding that the work he supervised, whether by the crime lab or the forensic investigators, was correctly done."
¶ 4 In response, the state argued that neither counsel had been ineffective because M.H. repeatedly indicated that he could be fair and impartial and, absent something contrary in the record, "counsel did not have a reason to challenge this juror for cause." The state further asserted that Rodriguez had failed to establish prejudice because "it is pure speculation to say that had this one juror not been on the panel, [Rodriguez] would not have been convicted." In reply, Rodriguez reasoned that "prejudice is presumed" because this case involves "implied bias" that violates his Sixth Amendment right to an impartial jury.
¶ 5 After an evidentiary hearing at which trial counsel testified, the trial court dismissed Rodriguez's Rule 32 petition, finding that Rodriguez had failed to establish prejudice. It explained that Rodriguez had "provided very little information to aid in this analysis" and "did not call [M.H.] as a witness." The court continued, "It is unknown when [M.H.] retired from his position, whether the juror knew any of the witnesses, whether the juror had supervised any of the witnesses, whether the juror was familiar with [Rodriguez's] case, whether the juror worked on [Rodriguez's] case, or whether [M.H.] supervised others who worked on [Rodriguez's] case." The court declined to "assume [M.H.] had sufficient ties to the case to render him unable to be a fair and impartial juror." The court similarly rejected Rodriguez's claim of presumed prejudice, reasoning that "[a]n assessment of implied bias likewise rests on an assessment of the relationship between the juror and the litigation." This petition for review followed.
¶ 6 "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) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Id. Under the first prong of Strickland, "we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (quoting Strickland, 466 U.S. at 689). To establish prejudice under the second prong of Strickland, a defendant cannot meet his burden by "mere speculation." State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999).
¶ 7 On review, Rodriguez argues that "the trial court erroneously concluded that testimony by [M.H.] was required in order to establish prejudice under Strickland." Again citing § 21-211 and Eddington, he asserts that M.H. was an interested person barred from serving on the jury. He maintains that a "trial by a jury including a biased juror constitutes structural error warranting automatic reversal of a conviction." And he reasons that the court erred "by failing to apply a structural-error framework to the Strickland analysis."
¶ 8 In response, the state contends that Rodriguez's argument "rests upon a faulty foundation" because he "has not met the threshold of proving that his trial suffered a structural error in the first place." The state maintains Rodriguez failed to prove that M.H. supervised any TPD employees who investigated the case or that M.H. was employed by TPD at the time of the investigation and, instead, incorrectly "assumed [M.H.] is an ineligible juror based solely on his former employment." "In actuality," the state continues, M.H. "never supervised these detectives or this investigation."
¶ 9 "Persons interested directly or indirectly in the matter under investigation," § 21-211(2), and "[p]ersons biased or prejudiced in favor of or against either of the parties," § 21-211(4), shall be disqualified from serving as jurors. As our supreme court explained in Eddington, the goals of § 21-211 include: "(1) preserving the right to a fair trial by impartial jurors, (2) ensuring that jurors derive their knowledge about the case solely from information presented at trial to the jurors collectively, and (3) protecting the appearance of fairness, which helps instill public confidence in the judicial system." 228 Ariz. 361, ¶ 8. In that case, the court concluded that "[t]he working relationship between the prosecution and the investigating agency is the type of interest § 21-211(2) is meant to cover." Id. ¶ 18. Thus, "a peace officer currently employed by the law enforcement agency that investigated the case is an 'interested person' who is disqualified from sitting as a juror." Id. Disqualification "does not depend on the particular officer's knowledge of witnesses or facts of the case or the officer's belief in his or her ability to be fair and impartial." Id.
¶ 10 This case is readily distinguishable from Eddington because M.H. was not employed by TPD at the time of trial. The supreme court's concerns in Eddington that "a co-employee might feel pressure in judging the 'credibility and conduct of coworkers'" and that a juror working "for the investigating agency might have access to information not available to other jurors" are not applicable when the individual no longer works for the agency. Id. ¶¶ 12-13. As the state points out, the record is not clear whether M.H. was even working for TPD at the time of the investigation. We thus disagree with Rodriguez that a challenge for cause necessarily "would have been successful because [M.H.] had a direct interest in the case under . . . § 21-211(2) as interpreted by Eddington." And Rodriguez has offered nothing further to otherwise support his claim that M.H. was interested or biased.
¶ 11 Moreover, unlike in Eddington, Rodriguez's argument is raised as one of ineffective assistance of counsel. He thus needed to establish that counsel's failure to seek removal for cause or peremptorily strike M.H.-or to raise the issue on appeal-fell below objectively reasonable standards. See Bennett, 213 Ariz. 562, ¶ 21. But at the evidentiary hearing, trial counsel testified that, based on her experience and trial strategy, there were other potential jurors "more deserving of p[er]emptory strikes than [M.H.]" She further explained that she wanted "someone who understood the Internet" and the authentication of a cloud storage account, like M.H., and that she thought M.H. "would have been more likely to be able to evaluate the evidence without letting emotion override." Thus, the challenged conduct appears to have had "'some reasoned basis'" and been "tactical in nature." Denz, 232 Ariz. 441, ¶ 7 (quoting State v. Gerlaugh, 144 Ariz. 449, 455 (1985)).
¶ 12 Nonetheless, we also agree with the trial court that Rodriguez failed to establish prejudice. Rodriguez has offered nothing but speculation that "[t]he jury 'could have' reached a different verdict without a juror who had supervised some of the witnesses in the case." See Rosario, 195 Ariz. 264, ¶ 23. Instead, he maintains that prejudice must be presumed because having a biased juror on the panel amounts to structural error. But, as we explained above, Rodriguez has failed to establish that M.H. was a biased juror. His argument thus fails, and the court did not err by dismissing his petition for post-conviction relief. See Martinez, 226 Ariz. 464, ¶ 6.
¶ 13 Accordingly, we grant review but deny relief.