Opinion
No. 2 CA-CR 2018-0086-PR
05-23-2018
THE STATE OF ARIZONA, Respondent, v. KELDRICK JAMAL BLACK, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent Droban & Company PC, Anthem By Kerrie M. Droban 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NOT FOR PUBLICATION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 Maricopa County
No. CR2013000305002DT
The Honorable John R. Ditsworth, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent Droban & Company PC, Anthem
By Kerrie M. Droban
Counsel for Petitioner
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Chief Judge Eckerstrom concurred. BREARCLIFFE, Judge:
¶1 Keldrick Black seeks review of the trial court's order summarily 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. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Black has not shown such abuse here.
¶2 After a jury trial, Black was convicted of first-degree murder, armed robbery, two counts of kidnapping, aggravated assault, and weapons misconduct. For first-degree murder, the trial court sentenced him to life in prison without the possibility of release for twenty-five years, to be served concurrently to sentences imposed for the other offenses. This court affirmed his convictions and sentences on appeal. State v. Black, No. 1 CA-CR 14-110 (Ariz. App. Aug. 27, 2015) (mem. decision).
¶3 Black sought post-conviction relief arguing he was entitled to a new trial based on newly discovered evidence, citing Rule 32.1(e). He provided an affidavit by his former codefendant (who pled guilty), who had previously stated he had shot the victim, but later claimed Black had done so. In that affidavit, the codefendant avowed that he had shot the victim and that Black had "no knowledge" of and "no involvement" in the crimes of which he was convicted. He asserted witnesses had mistaken Black for another, similar-looking individual whom he declined to identify. The trial court summarily denied relief, concluding the codefendant's affidavit did "not meet the requirements of newly discovered evidence." This petition for review followed.
The codefendant was sworn as a witness but refused to testify. His statements were introduced through other witnesses.
¶4 On review, Black asserts he has made a colorable claim of newly discovered evidence and is entitled to an evidentiary hearing. To be entitled to an evidentiary hearing, Black must have "alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). To raise a colorable claim of newly discovered evidence pursuant to Rule 32.1(e), Black must demonstrate that: (1) the evidence is, in fact, newly discovered; (2) he exercised due diligence in discovering and presenting the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issue involved; and (5) the evidence probably would change the verdict or sentence. See Ariz. R. Crim. P. 32.1(e); State v. Serna, 167 Ariz. 373, 374 (1991).
¶5 Black has not established the trial court erred in summarily rejecting his claim. Beyond broadly asserting the codefendant's affidavit "contradicts . . . much of the evidence presented at trial," he does not meaningfully address that evidence. As we noted in our decision on appeal, three witnesses identified Black as the shooter, and he had "residue 'indicative' of gunshot residue on his hands" when he was apprehended. And, the jury was informed of the codefendant's statement that he had shot the victim as well as his later claim that Black had done so. In sum, Black has not demonstrated any likelihood the purported new evidence—his former codefendant's latest version of events—would have altered the result of trial. Thus, even assuming the evidence otherwise qualifies as newly discovered under Rule 32.1(e), the court did not err in summarily rejecting this claim.
Black's petition for review, like his petition below, is largely bereft of citation to the record. See Ariz. R. Crim. P. 32.9(c)(4)(B) (petition for review must "includ[e] specific references to the record for each material fact"). Those few citations he has provided appear to be incorrect. See State v. Perez, 233 Ariz. 38, ¶ 10 (App. 2013) (argument "unsupported by authority or citations to the record" is waived). --------
¶6 We grant review but deny relief.