Opinion
2 CA-CR 2021-0083-PR
11-24-2021
THE STATE OF ARIZONA, Respondent, v. JOSH ALAN ALBRITTON, Petitioner.
Josh Albritton, Tucson In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Cochise County No. CR201100236 The Honorable Timothy B. Dickerson, Judge
Josh Albritton, Tucson In Propria Persona
Presiding Judge Espinosa authored the decision of the Court, in which Vice Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
ESPINOSA, PRESIDING JUDGE
¶1 Petitioner Josh Albritton seeks review of the trial court's orders denying his motions for production and DNA testing and dismissing 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). Albritton has not sustained his burden of establishing such abuse here.
Factual and Procedural Background
¶2 After a jury trial, Albritton was convicted of three counts of aggravated assault and eight counts of misconduct involving weapons. The charges arose from an incident in which the victim, L.M., who had been sent by a lending company to repossess a motorcycle, arrived at the home of Albritton's former wife in the early morning hours. Albritton was in the driveway working on a vehicle, and L.M. explained why he was there. Albritton did not respond, but he walked into the garage, with L.M. following him. Albritton closed the garage door, trapping L.M.'s foot and hitting it with what the victim described as "a sharp heavy object," almost severing one of L.M.'s toes. The trial court sentenced Albritton to concurrent and consecutive prison terms totaling ninety years. We affirmed his convictions and sentences on appeal. State v. Albritton, No. 2 CA-CR 2013-0128 (Ariz. App. Dec. 19, 2013) (mem. decision).
¶3 Albritton sought post-conviction relief, and appointed counsel filed a notice stating he had reviewed the record but found no colorable claims to raise under Rule 32. Although the trial court granted Albritton leave to file a pro se petition, he did not do so, and the court dismissed the proceeding in February 2015. Albritton did not seek review.
¶4 In March 2017, Albritton initiated a second Rule 32 proceeding, and he subsequently filed a motion requesting DNA testing of "all sharp objects" from his trial. On review from the trial court's denial of relief and the motion for DNA testing, we granted relief in part, remanding the matter "to the trial court for consideration of Albritton's motion for DNA testing under the appropriate authority," but otherwise denied relief. State v. Albritton, No. 2 CA-CR 2017-0307-PR, ¶¶ 4-5, 9 (Ariz. App. Jan. 26, 2018) (mem. decision). Along with its response to Albritton's DNA motion, the state filed documents showing that some knives and a hatchet had been secured at the home, but that the "sharp objects" in question had been destroyed pursuant to department policy. A portion of a "stained cloth" that had been found in the sink of the home and a swab from one of the knives had been retained. By April 2021, the court acknowledged it had not yet ruled on the motion and set the matter for its non-appearance calendar in May 2021.
¶5 Albritton filed a request for production of documents in March 2021 and another motion for DNA testing in April, this time asking for testing "on the remaining fragment of the 'bloody rag'" in the state's custody. If the trial court took any action on the matter in May as it had ordered, the record before us does not reflect it.
¶6 In June 2021, Albritton initiated a third proceeding for post-conviction relief, raising numerous claims and challenging the trial court's failure to rule on the DNA motion. He also moved to dismiss "all charges" against him due to "[t]he state[']s d[e]struction of all evidence in this case." By July 2021, the state had filed responses to Albritton's various motions. The court denied Albritton's motion to dismiss and took the motions for production and DNA testing under advisement.
¶7 In August 2021, the trial court denied Albritton's motions for production and for DNA testing and summarily dismissed the third petition for post-conviction relief. Albritton filed "notice[s] of appeal" from these rulings, which we have deemed petitions for review.
Discussion
¶8 On review from the denial of his motions for production and DNA testing, Albritton fails to adequately explain how the trial court abused its discretion in denying his production request. He argues only that "lab notes and reports" would be exculpatory and does not explain why the court was incorrect in concluding that at the time of his request, before his third petition for post-conviction relief had been filed, he was not entitled to production. Nor has he shown how the court erred in determining that he had not adequately explained how the requested items in his "broad and general request" "support his many claims for relief" in the third petition for post-conviction relief, filed after the request for production. Any such argument is therefore waived. State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (claim waived when defendant did not "develop the argument in any meaningful way" on review).
¶9 Albritton also fails to establish that the trial court erred in concluding he had not met the requirements for post-conviction DNA testing under A.R.S. § 13-4240. In support of his argument, he cites only Miller v. Pate, 386 U.S. 1 (1967). In that case, the evidence in question was a pair of "blood stained shorts," which had been found to have blood matching the victim's blood type on them. Id. at 4. Later testing showed the "blood" was actually paint and not human blood. Id. at 5-6. The Court determined that the prosecution had "deliberately misrepresented the truth" about the evidence and concluded the conviction was not "constitutionally valid." Id. at 2-3, 6-7.
¶10 The situation here is readily distinguishable. First, in order for a defendant to obtain relief under § 13-4240, the evidence must still exist. See § 13-4240(B)(2). In this case, the only evidence remaining is a portion of the rag and a swab from one of the "sharp objects" found in the home after the incident. Even if DNA testing were to show that the victim's DNA was not found on the rag or the knife, there would be other weapons that could have caused the victim's injuries. Furthermore, there was other substantial evidence to support Albritton's guilt. L.M. testified that when Albritton had walked into the garage and closed the garage door on L.M.'s foot, he asked Albritton to open it so he could leave, but in "just an instant almost," he felt "a heavy blow to [his] foot," which he thought was Albritton "stab[bing]" him. L.M.'s toe was severed "through to the skin on the bottom." L.M. identified Albritton as the man who had been in the driveway and had injured him. No evidence at trial suggested anyone other than Albritton was present with the victim when he was injured. Albritton's former wife testified he had told her he "closed the garage door on a man's foot." Albritton also showed investigating officers where the incident had taken place.
¶11 Additionally, the state did not rely heavily on the knife or rags in question at trial. A detective who executed the search warrant of the home acknowledged that there was a lack of evidence tying the weapons and the rags to the victim and Albritton, even agreeing that the stains on the rags found in the sink could be something other than blood. And, in closing arguments, the state also acknowledged the doubt around the rags and the lack of DNA evidence from the weapons. Perhaps most importantly, Albritton's defense at trial was not that he had not injured L.M., but that he had believed L.M. was breaking into the home.
¶12 In view of all this, we cannot say Albritton has shown that as a result of any DNA evidence from the rag or the single knife there would be "[a] reasonable probability . . . that [he] would not have been prosecuted or convicted," such that DNA testing would be required under the statute. § 13-4240(B)(1). Furthermore, we cannot say the trial court abused its discretion under § 13-4240(C) in denying the DNA testing. Even assuming the victim's DNA were not found on the knife or rag, and the evidence was thus favorable to Albritton, it would not be meaningfully exculpatory in that it would not tend to establish his innocence, but would instead merely eliminate one possible weapon. See Evidence, Black's Law Dictionary (11th ed. 2019) ("exculpatory evidence" is "[e]vidence tending to establish a criminal defendant's innocence"); cf. Trebus v. Davis, 189 Ariz. 621, 625 (1997) ("Clearly exculpatory evidence is evidence of such weight that it might deter the grand jury from finding the existence of probable cause."). This is particularly so in view of evidence at trial detailed above and Albritton's defense.
¶13 Finally, Albritton petitions for review from the trial court's dismissal of his third petition for post-conviction relief. In that petition he alleged various constitutional violations, sentencing claims, and claims of newly discovered evidence, significant change in the law, and actual innocence. He alleged that the sentences for his prohibited possessor charges should be served concurrently with the sentence for the assault charge under A.R.S. § 13-116 and State v. Dunbar, 249 Ariz. 37 (2020), and that the "state first withheld and then destroyed exculpatory D.N.A. evidence."
¶14 On review, Albritton abandons several of his claims, but he contends broadly that his constitutional claims are not precluded because they relate to rights that can only be waived knowingly, voluntarily, and personally and that he was actually innocent. He also reasserts his claim that his sentences should have been imposed concurrently. And he again contends the state wrongfully disposed of evidence and denied him the assistance of counsel.
¶15 We agree with the trial court that Albritton's claims of actual innocence have previously been addressed and therefore are precluded in this successive proceeding. See Ariz. R. Crim. P. 32.2(a)(2). To the extent that his claim of wrongful disposal of evidence by the state could be characterized as one of newly discovered evidence, he has not argued, let alone established, that the requirements for such a claim have been met. See Ariz. R. Crim. P. 32.1(e). And Albritton has waived the remainder of his claims on review based on his failure to adequately develop arguments that a personal waiver was required as to some claims, that Dunbar constituted a significant change in the law, or that he was entitled to relief under Dunbar even were it to apply. See Stefanovich, 232 Ariz. 154, ¶ 16. Furthermore, even if not precluded and waived, these claims are raised in a successive and untimely petition, and Albritton has not sufficiently explained why they were not raised on appeal, "in a previous notice or petition, or in a timely manner." Ariz. R. Crim. P. 32.2(b).
Disposition
¶16 Although we grant the petition for review, relief is denied.