Opinion
2 CA-CR 2023-0166-PR
02-14-2024
The State of Arizona, Respondent, v. Pitt Earl Adams Jr., Petitioner.
Kent P. Volkmer, Pinal County Attorney By Thomas C. McDermott, Deputy County Attorney, Florence Counsel for Respondent Arizona Justice Project, Phoenix By Lindsay Herf and Mitchell Stein Carey Chapman PC, Phoenix By Lee Stein Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pinal County No. S1100CR17248 The Honorable Jason Holmberg, Judge REVIEW GRANTED; RELIEF DENIED
Kent P. Volkmer, Pinal County Attorney
By Thomas C. McDermott, Deputy County Attorney, Florence
Counsel for Respondent
Arizona Justice Project, Phoenix
By Lindsay Herf
and
Mitchell Stein Carey Chapman PC, Phoenix
By Lee Stein
Counsel for Petitioner
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE:
¶1 Pitt Adams Jr. seeks review of the trial court's order denying his request for discovery and summarily dismissing his successive petition for post-conviction relief. We will not disturb this ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Adams has not met his burden of establishing such abuse here.
¶2 After a jury trial in 1993, Adams was convicted of first-degree murder and aggravated assault. Adams admitted at trial that he had shot at the victim once, claiming he believed the victim had been reaching for a gun. He testified that he had then dropped his gun and fled, hearing three more shots as he did so. R.W. testified that Adams had shot the victim three times. But another person testified that R.W. had told her Adams shot the victim once in the shoulder and another person, J.T., had picked up the gun and shot the victim twice. A different witness relayed another eyewitness's similar account.
¶3 Adams was sentenced to life for murder and a concurrent, fifteen-year prison term for aggravated assault. We affirmed his convictions and sentences on appeal. State v. Adams, No. 2 CA-CR 93-0304 (Ariz. App. Sept. 15, 1994) (mem. decision). In 2022, Adams filed a petition for post-conviction relief, raising a claim of newly discovered evidence and asserting that State v. Machado, 226 Ariz. 281 (2011), was a significant change in the law concerning the admission of evidence of third-party confessions. He also raised several constitutional claims.
¶4 In support of his claim of newly discovered evidence, Adams provided three declarations. In the first, an investigator stated that a witness, who was precluded from testifying about J.T.'s purported confession, had reiterated her claim that J.T. admitted to shooting the victim. Adams also submitted a declaration by another witness-again, whose testimony was precluded at trial-stating J.T. had told him the victim was alive when J.T. shot him after Adams fled. In the third declaration, a witness claimed that he had heard J.T. confess to the killing and that R.W. had told him several times that J.T. admitted responsibility to her. Adams also provided police reports from a recent reinvestigation of the case, which included statements by the victim's brother that J.T. had admitted to him that he killed the victim and that several other individuals had relayed confessions by J.T.
¶5 While his petition was pending, Adams requested additional discovery. He asked for records of the initial investigation and reinvestigation, a copy of a plea offered to Adams, and a copy of a request by the victim's family that a new prosecutor be assigned. The trial court summarily dismissed the petition and denied the motion to permit discovery.
¶6 The trial court found the constitutional claims precluded. It rejected Adams's remaining claims, reasoning that the evidence had established that the first shot-Adams's shot-was the one that killed the victim. The court concluded that because Adams had fired the fatal shot, none of the evidence Adams identified could have changed the verdict and Machado "would not have impacted [Adams]'s conviction." The court grounded its reasoning in our decision on appeal, in which we rejected Adams's argument that the trial court had erred in precluding testimony concerning J.T.'s statements to others that he fired the second and third shots. Adams, No. 2 CA-CR 93-0304, at 2. We concluded that "[t]aken together, the testimony of the chief medical examiner and the supervising criminalist . . . established that the first shot fired caused the chest wound and that the chest wound was the fatal wound." Id. Thus, we concluded the statements "would not have exculpated appellant because the evidence demonstrated that the second and third shots were not the bases of the murder conviction." Id.
Adams does not reassert these claims on review.
¶7 On review, Adams argues the trial court erred by rejecting his claims of a significant change in the law and newly discovered evidence. He focuses on the court's reliance on our decision on appeal, arguing that our statement that Adams necessarily fired the fatal shot is "unsupported by the record." Adams's argument that the statement in our decision on appeal is incorrect is an improper collateral attack. If that statement were unsupported by the evidence and our legal conclusion based on that statement consequently flawed, the proper course would have been for Adams to seek review by our supreme court pursuant to Rule 31.21(a), Ariz. R. Crim. P. Adams is correct, however, that if newly discovered evidence undermines that statement, we may properly consider whether that statement remains correct in light of that evidence. As we explain, however, his claims nonetheless fail.
To the extent Adams suggests we-or any Arizona appellate court-make factual findings, he is incorrect. See Rodriquez v. Williams, 104 Ariz. 280, 282 (1969).
¶8 As he did below, Adams argues under Rule 32.1(g) that Machado constitutes a significant change in the law that, if applied to his case, would change the outcome. "A 'significant change in the law' is 'a clear break from the past.'" State v. Valencia, 241 Ariz. 206, ¶ 9 (2016) (quoting State v. Shrum, 220 Ariz. 115, ¶ 15 (2009)), overruled on other grounds by State ex rel. Mitchell v. Cooper, 256 Ariz. 1, ¶ 47 (2023). Adams asserts that, under the reasoning in Machado, he would have been permitted to present evidence of J.T.'s purported confessions.
¶9 Adams has not demonstrated, however, that Machado changed the law in a way relevant to his case. He asserted in his petition below, without explanation, that the supreme court in Machado "redefined the standard for the admissibility of third-party culpability evidence." But the court in Machado analyzed whether Rule 404(b), Ariz. R. Evid., precluded evidence of third-party culpability. 226 Ariz. 281, ¶ 10. The court determined it did not but acknowledged that Arizona law on the subject was unclear. Id. ¶¶ 11, 16. Thus, even regarding that narrow issue, it is not apparent that Machado represents the clear break from the past that a claim under Rule 32.1(g) requires. And nothing in Machado purported to otherwise alter Arizona law governing the admission of third-party confessions. In any event, Adams has not shown how applying Machado would have changed the outcome of his case because he has not explained why the evidence was precluded in the first place. Thus, the trial court did not err in summarily dismissing Adams's claim under Rule 32.1(g).
¶10 As we noted above, Adams identified four witnesses in support of his claim of newly discovered evidence under Rule 32.1(e). Adams is entitled to relief under this rule if he demonstrates that "newly discovered material facts probably exist, and those facts probably would have changed the judgment." Ariz. R. Crim. P. 32.1(e). To be newly discovered, the facts must have been "discovered after the trial or sentencing" through the exercise of due diligence, and they must be "material and not merely cumulative or used solely for impeachment, unless the impeachment evidence substantially undermines testimony that was of such critical significance that the impeachment evidence probably would have changed the judgment or sentence." Id. Additionally, he must show the evidence could not have been discovered and produced at trial through reasonable diligence. State v. Saenz, 197 Ariz. 487, ¶ 7 (App. 2000).
¶11 The first two declarations are by witnesses interviewed by Adams at the time of trial, and he has not explained what meaningful new evidence they revealed in their most recent statements, much less why he could not have obtained that evidence previously. Thus, those statements cannot qualify as newly discovered evidence. See id. The remaining evidence largely consists of statements by non-eyewitnesses claiming J.T. confessed to killing the victim. But the trial court precluded testimony of J.T.'s purported confessions. That decision is the law of the case, and Adams has not explained how this evidence could have altered the court's decision to preclude J.T.'s statements. Nor has he established that the governing law has changed. And, insofar as the evidence has some impeachment value because it was inconsistent with R.W.'s testimony at trial that Adams had fired all the shots, it is cumulative to other trial evidence that J.T. had fired the last two shots.
¶12 Last, Adams argues the trial court erred by rejecting his request for additional discovery. As we noted above, that request sought not only materials from the reinvestigation but also information from the 1992 investigation, a copy of a plea offer the state purportedly had offered Adams, and a request by the victim's family for a new prosecutor.
¶13 Adams is correct that, pursuant to Rule 32.6(b)(2), a defendant who has filed a petition for post-conviction relief may obtain discovery upon demonstrating good cause. To do so, "the moving party must identify the claim to which the discovery relates and reasonable grounds to believe that the request, if granted, would lead to the discovery of evidence material to the claim." Ariz. R. Crim. P. 32.6(b)(2). The bulk of the material Adams requested, however, does not meet this standard because he requested material that was readily available to him before trial. As such, it could not support a claim of newly discovered evidence. And he has not identified any likelihood that the recent reinvestigation of the case yielded evidence of a different character than that he had already advanced in support of his claims-that is, cumulative impeachment evidence and inadmissible secondhand evidence of J.T.'s admissions.
¶14 We grant review but deny relief.