Opinion
No. 2 CA-CR 2017-0234-PR
01-25-2018
THE STATE OF ARIZONA, Respondent, v. DONALD JAMES STUTTER, Petitioner.
COUNSEL Dean Brault, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pima County
No. CR20140818001
The Honorable Richard D. Nichols, Judge
REVIEW GRANTED; RELIEF GRANTED IN PART AND DENIED IN PART
COUNSEL Dean Brault, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Donald Stutler 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 that order unless the court abused its discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We grant review and, for the reasons stated, grant relief in part and deny relief in part.
¶2 After a jury trial, Stutler was convicted of aggravated assault and sentenced to a one-year prison term. We affirmed his conviction and sentence on appeal. State v. Stutler, No. 2 CA-CR 2015-0110 (Ariz. App. Feb. 4, 2016) (mem. decision). His conviction stems from an altercation with his child's mother during which he placed his hand over her mouth and squeezed her neck with his other hand, causing her to be unable to breath.
In a separate opinion, we also affirmed the restitution award entered against Stutler. State v. Stutler, 243 Ariz. 128 (App. 2017).
¶3 Stutler sought post-conviction relief, arguing his trial counsel had been ineffective by: (1) "overcoming his will" to testify; (2) declining to object and request a mistrial when the jury had an ex parte communication with the bailiff about the number of assault charges; (3) withdrawing requested jury instructions for lesser-included offenses; and (4) deciding not to call an impeachment witness, present purported impeachment evidence, or "cross-examine[ the victim] about her financial motive to lie." The trial court summarily denied relief, and this petition for review followed.
¶4 On review, Stutler repeats his claims of ineffective assistance and asserts he is entitled to an evidentiary hearing. Stutler is entitled to a hearing only if he has presented a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "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); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In evaluating whether a claim is colorable and whether Stutler is thus entitled to an evidentiary hearing, we must assume the facts he has alleged are true. See State v. Watton, 164 Ariz. 323, 328 (1990).
¶5 There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which Stutler must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). Thus, "[d]isagreements as to trial strategy or errors in trial [tactics] will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260 (1984).
¶6 Stutler first argues trial counsel "thwart[ed] his expressed desire to testify" by promising acquittal and by failing to prepare him to testify despite his repeated requests. We agree with Stutler that, if his allegations are true, counsel's conduct would fall below prevailing professional norms. A defendant is entitled to decide whether to testify. Lee, 142 Ariz. at 215. Although Stutler's counsel avowed that Stutler ultimately agreed he should not testify, that is a factual dispute the trial court must resolve. See Watton, 164 Ariz. at 328-29. Thus, Stutler has made a colorable claim that counsel fell below prevailing professional norms.
¶7 The trial court determined Stutler did not make a colorable showing of prejudice, apparently concluding his testimony could not have swayed the jury. We disagree. Stutler claims he would have testified that he did not assault the victim in the manner she described and had instead merely pushed her away from him. The jury might have found that testimony credible and acquitted him of aggravated assault. Accordingly, he is entitled to an evidentiary hearing on this claim of ineffective assistance of counsel.
¶8 Stutler next claims counsel was ineffective for failing to move for a mistrial when the trial court informed them that the bailiff had spoken with the jury about the number of charges. Before the verdict, the court informed the parties that the bailiff had, in response to a verbal question from the jury, correctly informed the jury there was one charge, not separate charges of aggravated assault and assault. Neither party objected. The decision whether to request a mistrial is a tactical decision. See State v. Robles, 135 Ariz. 92, 96 (1983). Stutler has not shown counsel's decision lacked a reasoned basis. See Meeker, 143 Ariz. at 260. This claim of ineffective assistance therefore fails.
Stutler also asserts, in passing, that appellate counsel should have raised this issue. He does not meaningfully develop this argument, and we do not address it. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶9 Stutler also reasserts that counsel was ineffective for withdrawing requested jury instructions for lesser-included offenses. But that decision is plainly tactical. See State v. Mercer, 13 Ariz. App. 1, 2 (1970). Although Stutler claims counsel ignored his direction that the request should not be withdrawn, he concedes that decision belonged to counsel. See Lee, 142 Ariz. at 215 ("[T]he power to decide questions of trial strategy and tactics rests with counsel."). He cites no evidence suggesting counsel made a mistake of law in withdrawing the request, and no evidence or authority suggesting any competent counsel necessarily would have acted differently.
Citing State v. Wall, 212 Ariz. 1 (2006), Stutler asserts he could have requested the instructions but still pursued an "all or nothing" defense. The purpose of an "all or nothing" defense is to force the jury to find all the elements of the charge or to acquit. See id. ¶ 9. Requesting a lesser-included instruction is obviously counterproductive to that approach. Nothing in Wall suggests otherwise. There, our supreme court concluded only that a defendant who denied all knowledge of the crime was entitled to a jury instruction for a lesser-included offense if requested, provided the instruction is supported by the evidence. Id. ¶¶ 6-7, 28-29.
¶10 Last, Stutler claims counsel was ineffective for not calling a witness to testify about the victim's supposed history of dishonesty and to cross-examine the victim about previous calls to police and her purported motive to fabricate. The decision to call witnesses or present certain evidence is tactical. See id. The undisputed evidence in the record is that counsel considered but declined to present that evidence. Stutler has not attempted to show that decision could have no reasoned basis. See Meeker, 143 Ariz. at 260.
¶11 We grant review and partial relief. The case is remanded to the trial court for an evidentiary hearing on Stutler's claim that trial counsel improperly interfered with his right to testify. We otherwise deny relief.