Opinion
2 CA-CR 2024-0094-PR
08-13-2024
The State of Arizona, Respondent, v. Tony Brown, Petitioner.
Rachel Mitchell, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent Tony Brown, Yuma In Propria Persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2015149259002DT The Honorable Greg S. Como, Judge
Rachel Mitchell, Maricopa County Attorney By Robert E. Prather, Deputy County Attorney, Phoenix Counsel for Respondent
Tony Brown, Yuma In Propria Persona
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Sklar and Vice Chief Judge Eppich concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Tony Brown seeks review of the trial court's order summarily dismissing his motion filed pursuant to Rule 32.17, Ariz. R. Crim. P., seeking post-conviction DNA testing. We will not disturb that order unless the court abused its discretion. See State v. Gutierrez, 229 Ariz. 573, ¶ 19 (2012). Brown has not met his burden of establishing such abuse.
¶2 After a jury trial, Brown was convicted of aggravated assault and tampering with physical evidence; the trial court sentenced him to concurrent prison terms, the longer of which is fifteen years. Brown's assault conviction was based on his having pressed a pistol into the victim's chest or neck and pulled the trigger, but the gun jammed and did not fire. We affirmed his convictions and sentences on appeal, modifying his sentence to reflect eight additional days of presentence incarceration credit. State v. Brown, No. 1 CA-CR 16-0501 (Ariz. App. June 13, 2017) (mem. decision).
¶3 In 2018, Brown sought post-conviction relief raising a claim of newly discovered evidence based on an affidavit from his codefendant. The codefendant recanted his trial testimony that Brown had attempted to shoot the victim and instead claimed that Brown had never had a gun, the gun belonged to him, and he had dropped it during the altercation. The trial court denied post-conviction relief, concluding the recantation was not credible given the testimony of the victim, an eyewitness, and the marks on the victim's neck consistent with their account. We denied relief on review. State v. Brown, No. 1 CA-CR 18-0771-PRPC (Ariz. App. Apr. 4, 2019) (mem. decision).
¶4 In December 2023, Brown sought DNA and fingerprint testing of the gun, munitions clip, and bullets under Rule 32.17. The trial court denied his request. It concluded that even if testing did not show Brown's DNA or fingerprints, that would not "prove [his] innocence" in light of eyewitness testimony, nor would the presence of his codefendant's fingerprints or DNA have any exculpatory value since he had testified he handled the gun after Brown gave it to him. This petition for review followed.
¶5 A defendant is entitled to post-conviction DNA testing of appropriate material evidence in the state's control under Rule 32.17 if the defendant demonstrates the evidence exists, "the evidence was not previously subjected to DNA testing, or the evidence was not subjected to the type of DNA testing that defendant now requests and the requested testing may resolve an issue not resolved by previous testing," and-most salient here-"a reasonable probability exists that the defendant would not have been prosecuted, or the defendant's verdict or sentence would have been more favorable, if DNA testing would produce exculpatory evidence." Assuming Brown met his burden as to the first two requirements, we find no error in the trial court's determination that he failed to meet the third.
Although Brown also requested fingerprint testing, there is no rule or statute specifically allowing for post-conviction forensic testing that was readily available at the time of trial. See generally A.R.S. §§ 13-4241, 13-4240; Ariz. R. Crim. P. 32.17. We therefore limit our analysis to Brown's DNA claim.
¶6 Brown's argument on review, as it was below, is that if his DNA was not found on the pistol, clip, or bullets, that would demonstrate his innocence despite the evidence presented at trial. We cannot agree. Brown has identified no evidence suggesting that his DNA necessarily would have been found on these items had he handled them. As the trial court concluded in Brown's first post-conviction proceeding, the victim's testimony was consistent with that of an eyewitness and the physical evidence. Although the lack of Brown's DNA on the items-especially the pistol-would theoretically undermine that testimony, absent evidence that it was likely Brown's DNA would be found on the gun if he had possessed it, it is insufficient to create a reasonable probability of his acquittal. See Ariz. R. Crim. P. 32.17(d)(1)(A); see also State v. Miller, 251 Ariz. 99, ¶ 17 (2021) (defining "reasonable probability" as "a probability sufficient to undermine confidence in the outcome" (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984))).
Brown's own motion undermines his position. Although he maintained at sentencing that he did not possess a gun and that the gun belonged to his codefendant, he did not suggest-until filing his motion under Rule 32.17-that his codefendant had attempted to shoot the victim. Instead, until now, he maintained nobody had assaulted the victim with a gun, which his codefendant had accidentally dropped.
¶7 We grant review but deny relief.