Opinion
1 CA-CR 23-0331 PRPC
04-09-2024
STATE OF ARIZONA, Respondent, v. MICHAEL ESTRADA, Petitioner.
Maricopa County Attorney's Office, Phoenix By Robert A. Walsh Counsel for Respondent Michael J. Drew Attorney at Law, Phoenix By Michael J. Drew Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Maricopa County No. CR2018-149434-001 The Honorable Suzanne E. Cohen, Judge
Maricopa County Attorney's Office, Phoenix By Robert A. Walsh Counsel for Respondent
Michael J. Drew Attorney at Law, Phoenix By Michael J. Drew Counsel for Petitioner
Judge Michael S. Catlett delivered the decision of the Court, in which Presiding Judge Angela K. Paton and Judge James B. Morse Jr. joined.
MEMORANDUM DECISION
CATLETT, Judge:
¶1 Petitioner Michael Estrada ("Estrada") seeks review of the superior court's dismissal of his petition seeking post-conviction relief ("PCR") under Arizona Rule of Criminal Procedure 32.1, which claims ineffective assistance of counsel. We grant review but, because Estrada has not shown that his counsel was ineffective, deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 Late on October 7, 2018, Estrada and his four children approached a rideshare driver who was waiting at a red light. Estrada began banging on the window and asking the driver to call the police. The car was unlocked, so Estrada opened the backdoor, loaded himself and his children into the car, and yelled for the driver to go. The driver began driving off slowly while asking Estrada whether he needed the hospital or the police.
¶3 Estrada then grabbed the steering wheel, causing the car to veer into the adjacent light rail tracks. The driver attempted to regain control of the vehicle, at which point Estrada repeatedly stabbed him with a pair of scissors. The driver ran from the vehicle with the key fob in his pocket. Estrada jumped into the driver's seat and tried to drive off but was unable to without the key fob. Police then arrived, detained Estrada, and found a bag of methamphetamine in his sock.
¶4 At trial, Estrada testified that he and his children were fleeing from individuals trying to hurt him. Estrada and his children left the house and got on a light rail train, where Estrada claimed there was another individual who wanted to hurt him. Estrada and his children exited the train onto the light rail platform, where he claimed people were still chasing him. Consequently, he approached the rideshare driver, asked for help, and loaded his children into the car.
¶5 Estrada testified that the driver stopped complying with his requests, started driving very quickly and erratically, and refused to let Estrada or his children out despite numerous requests. Estrada claimed the driver started turning, instead of signaling a nearby police officer or letting Estrada and his children out, so Estrada grabbed the wheel to prevent the turn, which provoked the driver to punch him "at least twice" in the face. Consequently, Estrada reached into his bag, grabbed the scissors, and stabbed the driver "four or five times."
¶6 The jury found Estrada guilty of theft of a means of transportation, aggravated assault, child abuse, disorderly conduct, and possession of dangerous drugs. This court affirmed Estrada's convictions and sentences on direct appeal. See State v. Estrada, 1 CA-CR 20-0577, 2022 WL 175572, at *2 (Ariz. App. Jan. 20, 2022) (mem. decision).
¶7 Estrada petitioned for PCR, arguing that his trial counsel was ineffective because he failed to request a crime-prevention and two Willits jury instructions. He also argued that his appellate counsel was ineffective for failing to challenge the denial of a request for a different Willits instruction and the denial of trial counsel's request to play Estrada's son's full forensic interview to the jury. The superior court dismissed the petition, reasoning that neither counsel was ineffective.
¶8 Estrada timely petitioned for review. We have jurisdiction and grant review. See A.R.S. § 13-4239(C); Ariz. R. Crim. Pro. 32.16(a)(1).
DISCUSSION
¶9 Estrada argues the superior court erred in concluding that neither trial nor appellate counsel was ineffective. We review the superior court's decision to deny PCR for an abuse of discretion. State v. Reed, 252 Ariz. 236, 238 ¶ 6 (App. 2021). "To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, 567 ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Whether counsel rendered deficient performance "focuses on the 'practice and expectations of the legal community,' and asks, in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." State v. Pandeli, 242 Ariz. 175, 180 ¶ 5 (2017). "Failure to argue frivolous or groundless matters does not make counsel ineffective." State v. Ring, 131 Ariz. 374, 377 (1982).
I. Crime-Prevention Jury Instruction
¶10 Estrada argues his trial counsel was ineffective because counsel failed to ask for a crime-prevention instruction under A.R.S. § 13411. Section 13-411(a) provides that "[a] person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of . . . kidnapping under § 13-1304[.]" Under A.R.S. § 13-1304(A)(4), "[a] person commits kidnapping by knowingly restraining another person with the intent to . . . [p]lace the victim or a third person in reasonable apprehension of imminent physical injury to the victim or the third person[.]"
¶11 In Estrada's view, his testimony that he stabbed the driver to get him to stop and let Estrada and his children out of the vehicle after repeated requests required the trial court to instruct the jury that he was justified in his actions to prevent the crime of kidnapping. The superior court, however, did not abuse its discretion in dismissing this claim because Estrada did not establish deficient performance or prejudice.
¶12 The driver testified that Estrada got into his vehicle shouting "go" and "call 911," and only instructed him to stop the vehicle after Estrada began stabbing him. The driver did not recall Estrada ever asking to be let out of the vehicle. Estrada was also inadvertently on a call with 911 during the incident. That recording, which was played for the jury, reflected that from the time Estrada approached the driver's vehicle to when the altercation began was only fifty seconds. At no point during the altercation can Estrada be heard telling the driver to "stop" or requesting that he and his children be let out of the vehicle. Estrada's son informed police after the incident, and later testified, that the driver did not try to hurt them. Notably, the jury was given a self-defense instruction but rejected that defense.
¶13 Based on the totality of the evidence presented at trial, the jury was extremely unlikely to have found that the driver was engaging in kidnapping under A.R.S. § 13-1304 when Estrada stabbed him. Thus, trial counsel did not render deficient performance in failing to request a crimeprevention instruction. Moreover, where "[t]he record establishes that it was not reasonably likely that [a jury] instruction would have made any difference in light of all the other evidence of guilt," a defendant is unable to show he was prejudiced by counsel's failure to request the instruction. Berghuis v. Thompkins, 560 U.S. 370, 390 (2010). The superior court did not abuse its discretion in concluding that "[i]t [was] clear from the verdict that a crime prevention instruction would not have changed the outcome of this trial." Thus, Estrada's trial counsel did not prejudice Estrada by failing to request such an instruction.
II. Willits Jury Instructions
¶14 Estrada next argues that trial counsel was ineffective for failing to request Willits instructions regarding purported booking photos of Estrada and the driver's bloody cell phone. A Willits instruction "permits the jury to infer" that potentially exculpatory evidence, which the police negligently failed to preserve, "would have been exculpatory." State v. Fulminante, 193 Ariz. 485, 503 ¶ 62 (1999). To receive a Willits instruction, a defendant must prove "(1) that the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him, and (2) that this failure resulted in prejudice." State v. Speer, 221 Ariz. 449, 457 ¶ 40 (2009) (quotation marks and citation omitted). "To show that evidence had a 'tendency to exonerate,' the defendant must do more than simply speculate about how the evidence might have been helpful." State v. Glissendorf, 235 Ariz. 147, 150 ¶ 9 (2014).
¶15 Estrada testified that the driver punched him in the mouth, which caused Estrada to act in self-defense by pulling out the scissors and stabbing the driver "to protect" himself and his children. Estrada argues that the blood on the cell phone should have been tested because it could have revealed that it was his blood, bolstering his testimony that the driver punched him. He similarly contends that photos of his cut lip were taken after he was arrested and, if introduced, would have further supported his testimony.
¶16 The superior court did not abuse its discretion by dismissing Estrada's claim regarding the bloody cell phone because the police did not have any reason to believe the cell phone was material evidence that needed to be preserved and tested, and therefore did not act negligently by failing to do so. At the time of the incident, Estrada never informed police that he attacked the driver because the driver hit him. Similarly, Estrada's son confirmed to police on the night of the incident that the driver did not hurt Estrada. And officers testified there were no visible injuries on Estrada that night. The driver, however, sustained fourteen separate puncture wounds and was bleeding profusely.
¶17 The police, therefore, had no reason to believe the blood on the cell phone belonged to Estrada and thus could be material in any way to his future defense. The police could have reasonably concluded instead that the blood belonged to the driver. Accordingly, any requested Willits instruction would have properly been denied, and trial counsel did not perform deficiently by failing to request such an instruction. See Ring, 131 Ariz. at 377.
¶18 Estrada also argues trial counsel should have requested a Willits instruction regarding photos he claims were taken of his cut lip while he was being booked. But the record does not establish that any such photos existed. The officer who booked Estrada testified that the only photos taken were the two traditional booking photos-one straight on of Estrada's face and another of his profile. Estrada did not introduce either of those photos at trial to show that he was injured, nor did he introduce any police report or other record indicating that additional photos were taken. Even assuming the police took photos showing Estrada with a bloody lip, a Willits instruction would not have been required because Estrada could not show that, at the time of booking, "the state relie[d] on the evidence or [knew Estrada would] use the evidence for his . . . defense." State v. Hernandez, 250 Ariz. 28, 33 ¶ 16 (2020). As such, trial counsel was not ineffective for failing to request a Willits instruction.
¶19 At trial, Estrada's counsel did request a Willits instruction regarding the police's failure to collect surveillance footage of the light rail platform. The superior court denied this request, and Estrada's appellate counsel did not challenge that denial on direct appeal. Estrada contends his appellate counsel was ineffective for failing to do so because, if the footage showed someone chasing him, it would have bolstered his testimony and undercut the State's theory that he was having drug-related hallucinations.
¶20 The superior court properly dismissed this claim because Estrada failed to show that he was incapable of accessing the footage. See State v. Geotis, 187 Ariz. 521, 525 (App. 1996) (upholding the superior court's denial of a Willits instruction where defendant failed to show that evidence was "rendered inaccessible to the defendant for his later use"); State v. Walters, 155 Ariz. 548, 551 (App. 1987) ("[T]hese inmate witnesses were not in the exclusive control of the state. Therefore, failure of the state to obtain the identity of and/or interview these witnesses did not entitle appellant to a Willits . . . instruction."). The light rail surveillance footage was not in the control, let alone the exclusive control, of the police. And at trial, Estrada did not argue that only the police could have obtained the allegedly exculpatory footage. See Hernandez, 250 Ariz. at 32 ¶ 11 ("[T]he state does not have an affirmative duty to seek out and gain possession of potentially exculpatory evidence, nor does it have a duty to gather evidence for a defendant to use in establishing a defense." (quotation marks and internal punctuation omitted)). The superior court did not abuse its discretion in concluding appellate counsel was not ineffective for failing to appeal the Willits issue.
III. Arizona Rule of Evidence 106
¶21 Finally, Estrada argues that his appellate counsel was ineffective for failing to challenge the superior court's denial of trial counsel's request to play a forensic interview of Estrada's son to the jury. Relying on Arizona Rule of Evidence 106, Estrada argues that "the entire interview was necessary to provide context to the snippets that the State played in its case-in-chief." But Estrada then acknowledges that the interview was not played for the jury. He asserts instead that the interview, which took place in 2019, should have been introduced because the State introduced a video of Estrada's son talking with the police on the night of the incident in 2018.
¶22 Rule 106 provides that "[i]f a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part--or any other statement--that in fairness ought to be considered at the same time." Rule 106 does not permit a party to introduce "a separate statement from an entirely separate conversation that occurred on a separate date." State v. Champagne, 247 Ariz. 116, 134 ¶ 45 (2019) ("That [an individual] made contradictory statements . . . days apart does not somehow make those two statements one continuous utterance.").
¶23 The State did not introduce any portion of the 2019 forensic interview for the jury to hear-it played only portions of the interview to Estrada's son outside the hearing of the jury to refresh his recollection. The State instead introduced and played body-worn camera footage from one of the officer's interactions with Estrada's son on the night of the incident in 2018. Thus, Rule 106 did not apply, so the superior court properly denied trial counsel's request to play the interview and appellate counsel did not render deficient performance by not appealing the issue. See Ring, 131 Ariz. at 377.
CONCLUSION
¶24 We grant review but deny relief.