Opinion
2 CA-CR 2023-0071-PR
08-08-2023
The State of Arizona, Respondent, v. Juan Carlos Becerra, Petitioner.
Megan Page, Pima County Public Defender, By David J. Euchner and Michael J. Miller, Assistant Public Defenders, 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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 No. CR20163463001 The Honorable Casey F. McGinley, Judge
COUNSEL
Megan Page, Pima County Public Defender, By David J. Euchner and Michael J. Miller, Assistant Public Defenders, Tucson Counsel for Petitioner
Chief Judge Vasquez authored the decision of the Court, in which Presiding Judge Eppich and Judge Gard concurred.
MEMORANDUM DECISION
VASQUEZ, Chief Judge
¶1 Petitioner Juan Becerra seeks review of the trial court's order 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. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Becerra has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Becerra was convicted of first-degree felony murder, kidnaping, two counts of armed robbery, and two counts of aggravated assault with a deadly weapon. The trial court sentenced him to concurrent terms of imprisonment, the longest of which is life in prison without the possibility of release for at least twenty-five years. This court affirmed his convictions and sentences on appeal. State v. Becerra, No. 2 CA-CR 2018-0258 (Ariz. App. Jan. 30, 2020) (mem. decision).
¶3 In January 2021, Becerra filed a notice of post-conviction relief, asserting claims under Rule 32.1(a). In his petition, Becerra argued he had received ineffective assistance of trial and appellate counsel. He alleged the prosecutor had "engaged in impermissible vouching during his closing argument" and trial counsel had been ineffective in failing to object. Likewise, he argued appellate counsel was ineffective for not "rais[ing] the issue as fundamental error."
¶4 After an evidentiary hearing, the trial court denied relief. It determined that the prosecutor's argument had been "objectionable" but concluded Becerra had "not established that prevailing professional norms required [trial counsel] to object to the argument" or appellate counsel to argue it. The court also determined that Becerra had not established that either counsel's alleged failures caused him prejudice.
¶5 On review, Becerra argues the trial court abused its discretion in denying relief because it improperly "assumed" he was "required to have trial and appellate counsel's testimony" when his expert witnesses' testimony suggested there "could be no reasoned strategic basis" for their actions. He also asserts the court improperly concluded that his expert witnesses "lacked adequate knowledge of the case." Finally, he argues the court "confused" the standard for prejudice under Strickland v. Washington, 466 U.S. 668 (1984), with that for sufficiency of the evidence.
¶6 At the evidentiary hearing, Becerra had the burden of proving his factual allegations by a preponderance of the evidence. See Ariz. R. Crim. P. 32.13(c). We view the evidence presented "in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). Our review of the trial court's factual findings "is limited to a determination of whether those findings are clearly erroneous." Id. And when "the trial court's ruling is based on substantial evidence, this court will affirm." Id.
¶7 Becerra's claims of ineffective assistance of counsel arise from a statement made by the prosecutor in his rebuttal closing argument, which Becerra contends constitutes vouching for the state's witness, Rafael M. After entering into a plea agreement with the state, Rafael testified that he and Becerra had planned to use a vehicle that had "flashing red and blue lights" and a siren to imitate a police vehicle and stop one of the victims, G.C., to learn the location of a marijuana stash house. Rafael explained that after they had stopped the vehicle in which the victim was a passenger, Rafael and Becerra, along with two others from another vehicle, had approached G.C.'s vehicle, with Becerra on the passenger side. He heard a gunshot but did not know "where it came from." Becerra later told Rafael that he had shot G.C. in the head.
¶8 In his closing argument, Becerra argued that Rafael was "a liar" who had "only changed his story to benefit himself." He asserted that Rafael had been "the ring leader" of the plan or, at minimum, an accomplice but that the state had not charged him with a homicide as a result of his testimony, in which he "lie[d] and minimize[d] everything that he did." In contrast to the state's theory, Becerra argued that the evidence "all point[ed] to [Rafael] and his friends" and that Rafael was simply "trying to deflect attention from himself."
¶9 In rebuttal, the prosecutor discussed the nature of circumstantial evidence and asked the jurors to "[l]ook at all the circumstances that surround this scenario." He then said:
So Rafael . . . goes to his lawyer and says let's frame an innocent guy who's absolutely innocent. Does that sound like a good idea? And his attorney says, yeah, let's do that. That's a great idea. And then they come to me and concoct this crazy story. Does that make any sense?
And me, as a 21-year prosecutor, I say, yeah, I believe that, I get it, yeah. I mean you have to think about that. Because once [Rafael] gave information, the rest of the circumstances you look at fit. Trial counsel did not object, and the prosecutor went on to discuss other evidence and how it fit with Rafael's account.
¶10 At the evidentiary hearing, Becerra's trial and appellate counsel did not testify, but Becerra called two criminal defense attorneys, one with experience in trial representation and one with experience in appellate representation. Each of them testified that they believed the prosecutor's statement about his being "a 21-year prosecutor" was objectionable as vouching for Rafael and that they either would have objected to the statement or raised it on appeal, despite the lack of objection at trial. Each of them also admitted they had not reviewed the trial transcripts or record in full but had instead reviewed only what they had been given by Rule 32 counsel, apparently the transcript of the closing arguments.
¶11 To prevail on his claim of ineffective assistance, Becerra was required to "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland, 466 U.S. at 687-88). A court must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)). "Representation falls below the prevailing professional norms of the legal community if counsel's performance was unreasonable under the circumstances." Id. ¶ 10 (quoting State v. Miller, 251 Ariz. 99, ¶ 10 (2021)).
¶12 In its ruling after the hearing, the trial court determined that the prosecutor's argument had been objectionable, but it pointed out that counsels' decisions not to object or to raise the issue on appeal were strategic in nature. Noting that neither trial nor appellate counsel had been called as witnesses and that Becerra's experts had not reviewed "the record in its entirety," the court further explained that it was required "to consider counsels' conduct based on the facts of the particular case." In doing so, it concluded Becerra had failed to establish that either trial or appellate counsel's strategic decisions were not reasonable.
¶13 On review, Becerra argues the trial court abused its decision in reaching this conclusion because his experts' testimony established that counsel should have objected to the prosecutor's vouching and raised the issue on appeal. Thus, he contends, the court erred by suggesting his attorneys should have testified. He further argues it erred in concluding he had not established deficient performance when "neither the State nor the . . . court" provided a "strategic or tactical reason that would be objectively reasonable," despite his experts' testimony to the contrary. But, in order to prevail, Becerra, not the state, had the burden of overcoming the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." State v. Kolmann, 239 Ariz. 157, ¶¶ 9-10 (2016) (quoting Strickland, 466 U.S. at 689). To "overcome this presumption," Becerra had to establish "that counsel's decisions were not tactical or strategic in nature, but were instead the result of 'ineptitude, inexperience, or lack of preparation.'" Id. ¶ 10 (quoting State v. Goswick, 142 Ariz. 582, 586 (1984)).
¶14 The trial court properly considered Becerra's expert testimony in the context of their admittedly limited knowledge of the case. Contrary to Becerra's assertion that the court ruled "no expert could reasonably opine on counsel's duty without reading the entire record," the court discussed the expert witnesses' limited knowledge of the trial as a whole in the context of weighing their testimony. As the finder of fact in the context of a post-conviction proceeding, such weighing was appropriate. See Ariz. R. Evid. 702 cmt. to 2012 amend.; Logerquist v. McVey, 196 Ariz. 470, ¶ 52 (2000) ("Questions about the accuracy and reliability of a witness' factual basis, data, and methods go to the weight and credibility of the witness' testimony and are questions of fact.").
¶15 In doing its weighing, the trial court was not required to accept the experts' testimony as absolute, see State v. Schantz, 98 Ariz. 200, 205 (1965) (finder of fact "not compelled to accept the uncontradicted opinion testimony of an expert"), and could rely on its own experience and knowledge in evaluating counsel's strategic choices, see Bigger, 251 Ariz. 402, ¶ 14; cf. State v. Wood, 180 Ariz. 53, 61 (1994) (trial court in best position to decide claims of ineffective assistance of counsel, which "are fact-intensive and often involve matters of trial tactics and strategy"). As the court suggested by discussing trial counsel's opportunity to perceive the jury's response to the argument, we can conceive of several strategic reasons why trial counsel may not have objected. For example, counsel may have believed interrupting the state's closing argument would distract the jury or draw attention to the prosecutor's purportedly improper comments. Indeed, Becerra's experts acknowledged that such considerations are relevant to whether or not counsel would object. On the record before us, we cannot say the court abused its discretion in determining Becerra had failed to carry his burden to show that counsel's decision not to object was a result of ineptitude rather than a strategic decision. See Goswick, 142 Ariz. at 586; see also State v. Valdez, 160 Ariz. 9, 15 (1989) (not "every failure to object . . . worthy of being called ineffective assistance of counsel"), overruled on other grounds by Krone v. Hotham, 181 Ariz. 364 (1995).
¶16 Likewise, appellate counsel's "strategic decision to 'winnow[] out weaker arguments on appeal and focus[] on' those more likely to prevail is an acceptable exercise of professional judgment." State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005) (alteration in Febles) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). That Becerra's witness might have made a different strategic decision does not render appellate counsel's decision "the result of 'ineptitude, inexperience, or lack of preparation.'" Kolmann, 239 Ariz. 157, ¶ 10 (quoting Goswick, 142 Ariz. at 586); see also Bigger, 251 Ariz. 402, ¶ 22 (courts may consider expert opinion but should not "substitute their after-the-fact judgment for counsel's during trial").
¶17 Becerra also contends the trial court "misapplied Strickland's prejudice prong." In its ruling, quoting State v. Lee, 142 Ariz. 210, 214 (1984), the court explained that it was required to "determine whether there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' A 'reasonable probability' is less than 'more likely than not' but more than a mere possibility." Becerra contends the court then "misapplied" this standard "by viewing the rest of the evidence in isolation under a sufficiency-of-evidence standard." He criticizes the court's listing of "evidence pointing toward [his] guilt" on the basis that the evidence was, "at best, circumstantial of guilt." And he argues the court erred in "focus[ing] on what would be the impact of a proper objection, i.e., that the court would instruct the jury to disregard the comment." He suggests that instead of applying the standard stated above, we should employ "an additional expression" of the standard for a reasonable probability, stated in Strickland, "A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 694. And, he implies that the court could not view the remaining evidence in a light favorable to sustaining the verdict.
¶18 These arguments, however, take the statement in Strickland in isolation. Later in its decision, the Supreme Court explained that in order to carry the burden of showing prejudice a defendant must show "that the decision reached would reasonably likely have been different absent the error[]. Strickland, 466 U.S. at 696. And the Court also directed that "a court hearing an ineffectiveness claim must consider the totality of the evidence before the . . . jury" and, in so doing, take findings unaffected by the alleged error "as a given." Id. at 695-96. When considering the decision in Strickland as a whole, it is consistent with the standard set forth by our supreme court in Lee and employed by the trial court here. In determining whether Becerra had been prejudiced, the court properly considered whether it was "reasonably likely" that counsels' alleged errors changed the outcome of Becerra's trial or appeal, Harrington v. Richter, 562 U.S. 86, 111 (2011) (quoting Strickland, 466 U.S. at 696), and we cannot say it abused its discretion. We grant the petition for review but deny relief.