Opinion
No. 2 CA-CR 2018-0274-PR
12-26-2018
THE STATE OF ARIZONA, Respondent, v. BRADLEY ALAN SCHWARTZ, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent Barton & Storts P.C., Tucson By Brick P. Storts III 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NOT FOR PUBLICATION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. CR20043995002
The Honorable Brenden J. Griffin, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent
Barton & Storts P.C., Tucson
By Brick P. Storts III
Counsel for Petitioner
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
ECKERSTROM, Chief Judge:
¶1 Petitioner Bradley Schwartz 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 (App. 2007). Schwartz has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Schwartz was convicted of conspiracy to commit first-degree murder and sentenced to life in prison without the possibility of release for twenty-five years. This court affirmed Schwartz's conviction and sentence on appeal. State v. Schwartz, No. 2 CA-CR 2006-0213 (Ariz. App. Mar. 31, 2008) (mem. decision). Schwartz thereafter sought and was denied post-conviction relief, and this court denied relief on review. State v. Schwartz, No. 2 CA-CR 2015-0033-PR (Ariz. App. May 7, 2015) (mem. decision).
¶3 In March 2018, Schwartz again sought post-conviction relief, claiming newly discovered evidence entitled him to relief. Specifically he asserted that his former fiancé, Lourdes Lopez, an attorney, had made statements to one of her clients that showed a "strong bias against Dr. Schwartz at the time of trial, and the core basis of her motivation for testifying and implicating [him]" in the murder. The trial court summarily denied relief.
¶4 On review, Schwartz contends the trial court erred "when it refused to consider [as true] the affidavit" given by Lopez's client and in denying him relief without a hearing. Contrary to Schwartz's assertion, however, although the court initially did not realize an affidavit from the client had been filed, it expressly stated it would assume the client would testify "consistent with the investigator's affidavit," which had also been filed. And, when Schwartz filed a motion for reconsideration pointing out that the client's affidavit had been filed, albeit after the filing of all briefing,
the court stated again that it had "assumed that testimony was admissible and believable."
¶5 To establish he was entitled to relief on the basis of newly discovered evidence, Schwartz was required to establish "(1) the facts were discovered after the trial or sentencing; (2) the defendant exercised due diligence in discovering these facts; and (3) the newly discovered facts are material and not merely cumulative or used solely for impeachment." Ariz. R. Crim. P. 32.1(e). Facts that are solely used for impeachment may, however, support a claim for relief if "the impeachment evidence substantially undermines testimony that was of critical significance such that the evidence probably would have changed the verdict or sentence." Ariz. R. Crim. P. 32.1(e)(3).
¶6 The evidence at issue here consists of Lopez's statements that Schwartz had committed domestic violence against her, that she had obtained false prescriptions with Schwartz and lost her job because of her relationship with him, and that she wanted Schwartz "taken care of." But at trial, Lopez testified about having lied to Drug Enforcement Agency investigators about prescriptions and about having left her job because she knew she would be indicted. Thus, at least some of the evidence is cumulative.
¶7 The remaining evidence is solely impeaching of Lopez. Schwartz argues that the evidence went to "Lopez's motive for testifying" and would have aided in cross-examination to show "bias and prejudice," making it "more important than evidence that is 'merely cumulative impeachment.'" But by definition such evidence is impeaching.
[I]mpeachment is that which is designed to discredit a witness, i.e., to reduce the effectiveness of his testimony by bringing forth evidence which explains why the jury should not put faith in him or his testimony. Examples of impeachment evidence would include prior inconsistent statements, bias, attacks on character of a witness, prior felony convictions, and attacks on the capacity of the witness to observe, recall or relate.
Zimmerman v. Superior Court, 98 Ariz. 85, 90 (1965) (citation omitted).
¶8 Thus, Schwartz was entitled to relief only if the evidence "substantially undermine[d] testimony that was of critical significance such that the evidence probably would have changed the verdict or sentence." Ariz. R. Crim. P. 32.1(e)(3). We cannot say the trial court abused its discretion in determining the purported newly discovered evidence did not meet that standard. Although Schwartz has maintained that Lopez was the most important of a group of witnesses and that she testified about an inculpatory payment Schwartz had allegedly made to her ex-husband, he has not concretely articulated how further discrediting Lopez would have probably changed the verdict in light of the other evidence presented. In view of the cumulative nature of much of the new material, we cannot say it would have "substantially undermine[d]" Lopez's testimony. Furthermore, as the court pointed out, there was ample evidence against Schwartz, including many other witnesses who testified about Schwartz's motivation and threatening comments toward the victim.
¶9 Although we grant the petition for review, we deny relief.