Opinion
No. 2 CA-CR 2018-0262-PR
06-11-2019
THE STATE OF ARIZONA, Respondent, v. JERRY JACKSON, Petitioner.
Jerry Jackson, Eloy In Propria Persona
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NOT FOR PUBLICATION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 Pima County
No. CR20113358001
The Honorable Jane L. Eikleberry, Judge
REVIEW GRANTED; RELIEF DENIED
Jerry Jackson, Eloy
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Petitioner Jerry Jackson 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 review a court's denial of post-conviction relief for an abuse of discretion. State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). We find none here and, although we grant review, we deny relief.
¶2 After a jury trial in 2013, Jackson was convicted of armed robbery, attempted armed robbery, and three counts of aggravated assault involving two victims, M.Z. and D.W., and committed on separate occasions. He was sentenced to a combination of enhanced, presumptive, consecutive and concurrent prison terms totaling eighteen years. This court affirmed his convictions and sentences on appeal. State v. Jackson, No. 2 CA-CR 2013-0289 (Ariz. App. June 25, 2014) (mem. decision).
¶3 Jackson then filed a timely notice of post-conviction relief. After appointed counsel notified the court he had found no colorable claims to be raised on his behalf, Jackson filed a pro se petition alleging trial counsel rendered ineffective assistance by, among other things, (1) failing to inform Jackson that a videotaped deposition of M.Z. had been scheduled and then stating, on that deposition record, that Jackson had waived his right to be present; and (2) failing to conduct any cross-examination of M.Z. during the deposition. The trial court dismissed the petition without an evidentiary hearing, and Jackson filed this pro se petition for review of that ruling.
Although Jackson raised other claims in his petition below, these are the only claims preserved in his petition for review. See Ariz. R. Crim. P. 32.9(c)(4)(D) (failure to raise "any issue that could be raised" in petition for review "constitutes a waiver of appellate review of that issue"). Similarly, we will not address Jackson's claim that counsel was ineffective in failing to object to admission of the videotaped deposition, as that issue was not raised in his petition below. See Ariz. R. Crim. P. 32.9(c)(4)(B)(ii) (emphasis added) (petition for review must contain "statement of issues the trial court decided that the defendant is presenting for appellate review"); State v. Ramirez, 126 Ariz. 464, 468 (App. 1980) (appellate court will not consider issues in Rule 32 petition for review that have "never been presented to the trial court for its consideration").
The trial court's ruling was filed on January 13, 2016, and Jackson's September 2018 petition for review would ordinarily be considered untimely. See Ariz. R. Crim. P. 32.9(c)(1)(A). But the trial court granted Jackson's motion for an extension of time to file his petition with this court, see Ariz. R. Crim. P. 32.9(c)(3), and he has complied with the deadline set forth in that order.
Factual and Procedural Background
¶4 As the trial court made clear, the crimes were similar in nature. M.Z., in response to an internet listing, met a man and purchased a smartphone that he later discovered did not work. He contacted the seller, but, when the two met again for an exchange of the phone, the seller robbed him at gunpoint. According to the court's ruling, M.Z. provided law enforcement officers "with the contact information he used to arrange the meeting[s] . . . as well as a physical description of his assailant." About a week later, D.W. responded to an online posting and met Jackson to purchase an electronic tablet when Jackson "pulled out a gun, demanded 'everything you've got,' and shot the second victim in the neck." One of the telephone numbers D.W. had used to contact Jackson matched a contact phone number M.Z. had provided to law enforcement.
Unless otherwise noted, Jackson does not dispute the facts set forth in the trial court's ruling.
¶5 Police continued to investigate and eventually located Jackson, who "confessed his involvement with the attempted robbery and shooting of [D.W.], but denied robbing [M.Z.]." Jackson testified at trial that he had sold M.Z. a cell phone and that M.Z. later contacted him to say the phone was broken. But Jackson said he never arranged to meet M.Z. for a refund or exchange, never met him again, and did not rob him.
¶6 Before trial, the state moved to conduct M.Z.'s deposition, noting that he was then residing in another state and, although he had arranged to be present for trial, the trial had been continued. The state's motion informed the trial court that "[b]oth parties agree to a deposition." Jackson was not in custody on September 17, 2012, when M.Z.'s deposition was conducted, and he did not attend the deposition. After the state concluded its questioning, Jackson's attorney stated, "I have no cross. For the purposes of this deposition we have stipulated that the Defendant need not be present." At trial, Jackson's attorney stipulated to the admission of M.Z.'s videotaped deposition, and the jury convicted Jackson of the armed robbery and aggravated assault committed against M.Z.
¶7 In its order summarily denying post-conviction relief, the trial court observed, "[A]lthough the notice of deposition was provided to defense counsel, it is unclear whether defense counsel conveyed that information" to Jackson. But the court concluded Jackson failed to make a colorable showing that he "was somehow prejudiced" by his attorney's conduct, noting that "only his lawyer could cross-examine the witness" and further finding that "no benefit would have been served" by cross-examination. The court addressed counsel's waiver of Jackson's presence at the deposition and his decision to forgo cross-examination as a single claim, stating, "The fact that trial counsel waived Petitioner's presence and chose to not cross-examine the first victim in this case does not support a colorable ineffective assistance of counsel claim."
Discussion
¶8 Rule 32.6(d)(1) authorizes summary dismissal of a petition for post-conviction relief if "the court determines that no [non-precluded] claim presents a material issue of fact or law that would entitle the defendant to relief under [Rule 32]." "Stated differently, a petition that fails to state a colorable claim may be dismissed without an evidentiary hearing." State v. Kolmann, 239 Ariz. 157, ¶ 8 (2016). Ordinarily, "[t]o 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, ¶ 21 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). In rare circumstances—for example, "if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing"—prejudice may be presumed. United States v. Cronic, 466 U.S. 648, 659 (1984). Whether Jackson's attorney rendered ineffective assistance "is a mixed question of fact and law," with the trial court's legal conclusions subject to our de novo review. State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017) (quoting State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013)).
¶9 In its order here, the trial court did not expressly reach the issue of counsel's competence. Instead, quoting State v. Lee, 142 Ariz. 210, 214 (1984), it concluded Jackson had failed to make a colorable showing of a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694). But in his petition for review, as in his petition below, Jackson relies not only on Strickland, but on Cronic, asserting that, under the latter authority, trial counsel's failure to cross-examine M.Z. at his deposition "establishes a per se violation of [his] right to the effective assistance of counsel." In addition, he maintains counsel was ineffective in failing to inform him of M.Z.'s deposition and in then stating his presence there was "waived." According to Jackson, he could not have voluntarily waived his right to confront M.Z., because he was unaware of the opportunity to attend the deposition.
¶10 Although the trial court did not address Jackson's claim of presumptive prejudice under Cronic, we nonetheless conclude Jackson has failed to show the court abused its discretion in summarily denying relief. See Roseberry, 237 Ariz. 507, ¶ 7 (reviewing court "will affirm a trial court's decision" on petition for post-conviction relief "if it is legally correct for any reason"). We will address his two claims separately, beginning with counsel's decision to forgo cross-examination at M.Z.'s deposition. No Cross-Examination at M.Z.'s Deposition
¶11 In considering whether counsel performed deficiently, this court, like the trial court, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Pandeli, 242 Ariz. 175, ¶ 7 (quoting Strickland, 466 U.S. at 689). In other words, "Disagreements as to trial strategy . . . will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." Id. ¶ 15 (quoting State v. Meeker, 143 Ariz. 256, 260 (1984)). Thus, to obtain an evidentiary hearing, a defendant must make a colorable showing that his attorney's decisions "were not tactical or strategic in nature, but were instead the result of 'ineptitude, inexperience or lack of preparation.'" Kolmann, 239 Ariz. 157, ¶ 10 (quoting State v. Goswick, 142 Ariz. 582, 586 (1984)).
¶12 Jackson maintains his attorney's decision to forgo cross-examination at M.Z.'s deposition, in and of itself, establishes deficient performance. He relies in large part on excerpts from what appears to be a pre-deposition interview of M.Z., during which M.Z. said he recognized the voice of the man who arranged the second meeting and committed the robbery as the same man who had sold him the first cell phone. M.Z. also said the man had identified himself as "Joe." According to the interview excerpts, M.Z. was shown "two line ups" and was unable to identify anyone as "look[ing] familiar," although he also responded that he thought he would be able to visually identify the perpetrator if he saw him again.
To his petition below, Jackson attached pages three, seventeen, and nineteen from an interview conducted on August 30, 2011. There is no cover page or identification of the questioner, but the state's response to Jackson's petition below notes that defense counsel "conducted pre-trial interviews with the State's witness."
It is unclear from these excerpts what M.Z. was shown at his interview, and Jackson did not attach any interview exhibits to establish whether his image was included in the "line ups" shown to M.Z.
¶13 As the trial court observed, none of M.Z.'s interview answers were inconsistent with his later deposition testimony. Thus, although Jackson generally complained that cross-examination at M.Z.'s deposition was required to "expose the inconsistent statements made by [M.Z.]," he failed to identify any such inconsistencies, and he therefore failed to overcome the presumption that his attorney made a reasoned tactical decision to forgo questioning. See State v. Donald, 198 Ariz. 406, ¶ 17 (App. 2000) (defendant's "conclusory assertion" inadequate to warrant evidentiary hearing; he "must provide specific factual allegations that, if true, would entitle him to relief").
¶14 The trial court correctly considered Jackson's lack of detail in concluding he had not established a colorable claim of prejudice under Strickland. It is equally relevant to Jackson's burden to make a colorable showing that counsel's performance was constitutionally inadequate. See Bennett, 213 Ariz. 562, ¶ 21 (defendant required to state colorable claim of both deficient performance and prejudice); cf. Pandeli, 242 Ariz. 175, ¶¶ 14-15 (counsel's decision to forgo cross-examination of expert, to prevent further damage to defendant's case, was "reasoned (even if mistaken) strategic judgment" that did not support claim of ineffective assistance).
¶15 Moreover, this is not the rare instance of an attorney who "entirely fail[ed] to subject the prosecution's case to meaningful adversarial testing." Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis added in Cone) (quoting Cronic, 466 U.S. at 659). In Cone, the Supreme Court explained that in order for a court to presume prejudice under Cronic, "based on an attorney's failure to test the prosecutor's case, . . . the attorney's failure must be complete." Id. (defendant not relieved of required showing of Strickland prejudice when he argued only that counsel failed to oppose prosecution "at specific points" during sentencing, not "throughout the sentencing proceeding as a whole"); see also State v. Glassel, 211 Ariz. 33, ¶ 64 (2005) (no presumption of prejudice for counsel's decision to forgo presenting mental health expert witnesses in penalty phase of capital case; counsel argued for mitigation based on three other factors).
¶16 The lessons of Cone and Glassel foreclose a presumption of prejudice under Cronic. Jackson argues his attorney's decision to forgo cross-examination was a "per se violation" of his right to counsel under Cronic, because cross-examination would have "exposed the inconsistent statements . . . in [M.Z.'s] deposition." Again, Jackson failed to identify any such inconsistencies, and none are evident from the excerpts of M.Z.'s earlier interview attached to Jackson's petition below. And, although Jackson's attorney did not question M.Z. about his alleged inability to identify Jackson in a previous "line up," he emphasized the absence of identification evidence in closing argument, asserting M.Z. was never "able to make any type of identification" of Jackson based on either the initial sale of the cell phone or the later robbery. Counsel told the jury, "[Y]ou didn't have that. Not an in court identification, no photo line-up, and no admission" by Jackson. Jackson's attorney then argued the absence of a positive identification by M.Z. created reasonable doubt of Jackson's guilt on those charges, stating, "There is a possibility that that may not have been . . . Jackson. In fact, not just a possibility, there's a probability, because there was no identification by [M.Z.]. There's no police lineup."
¶17 This was not the "complete" failure of advocacy contemplated in Cronic. Cone, 535 U.S. at 697. The Strickland prejudice standard, requiring some showing of a reasonable probability of a different result but for the unprofessional conduct of counsel, thus applies to Jackson's claim. See id. at 695, 697-98. For the reasons stated in the trial court's ruling, Jackson failed to make that showing with respect to counsel's decision to forgo cross-examination at M.Z.'s deposition. "Waiver" of Jackson's Presence at M.Z.'s Deposition
¶18 Jackson also contends his attorney was ineffective in stipulating that Jackson "need not be present" at M.Z.'s deposition, asserting the stipulation violated his Sixth Amendment right to be present at all critical stages of trial and to confront his accusers. Quoting Evans v. United States, he maintains a waiver of his right to be present at the deposition required "a voluntary relinquishment of a known right." 284 F.2d 393, 395 (6th Cir. 1960) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (no evidence that in-custody defendant waived right to be present when court gave additional instructions to jury). He acknowledges that "[a] waiver may be implied" if there is "evidence in the record to support that implication." But he notes, as did the trial court, that the record did not establish whether he had notice of M.Z.'s deposition, and he argues he neither expressly nor implicitly waived his right to be present for a deposition intended to be used at trial.
Jackson states he never received notice of the video deposition or of his right to be present, and "was only made aware of the deposition when the state played the video during trial."
¶19 According to Jackson, "Counsel could not have validly waived [his] presence for the deposition since he did not inform him about it." He argues, "Any waiver entered is invalid and not binding on [Jackson] since it was not consented to [by him] in any form[,] verbally or written, [or through] knowing or voluntary action."
¶20 But our supreme court has explained that "'a trial court may rely on counsel's waiver of a defendant's right to be present' in certain circumstances," and "personal waiver by the defendant is not required." State v. Rose, 231 Ariz. 500, ¶ 9 (2013) (quoting State v. Canion, 199 Ariz. 227, ¶ 26 (App. 2000)). Relying on Henry v. Mississippi, 379 U.S. 443 (1965), we have similarly stated, "Unless the circumstances are exceptional, a defendant is bound by his counsel's waiver of his constitutional rights"—even "without a showing that there was consultation with the accused." State v. Collins, 133 Ariz. 20, 23 (App. 1982); see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, n.3 (2009) ("The right to confrontation may, of course, be waived, including by failure to object to the offending evidence.").
Although Jackson alleged Confrontation Clause violations in his appeal, this court denied the claim based—at least in part—on counsel's stipulations suggesting Jackson had waived his presence at M.Z.'s videotaped deposition and any objection to its admission at trial. See Jackson, No. 2 CA-CR 2013-0289, ¶¶ 6, 9. This court, like the trial court, was entitled to rely on those representations. See Kolmann, 239 Ariz. 157, ¶ 12 (defendant's right to be present "is not absolute and . . . may be waived by defendants or their counsel"). Thus, although the trial court is correct that we found "no error" on appeal, that ruling is of little relevance in addressing Jackson's claims that counsel was ineffective in waiving his presence at M.Z.'s deposition. As addressed above, Jackson did not claim in his petition below that counsel was ineffective for stipulating, or failing to object, to the admission of the deposition at trial, and that claim is not before us on review. See supra note 1.
¶21 "Most courts have recognized the validity of an attorney's waiver of the right to confrontation on a defendant's behalf." State v. Tribble, 67 A.3d 210, ¶¶ 36-37 (Vt. 2012) (collecting federal and state cases). And, as for "exceptional" circumstances that might render counsel's waiver ineffective, see Collins, 133 Ariz. at 23, most courts have adopted "the general rule that defense counsel may validly waive a defendant's right of confrontation where two elements are met: (1) the defendant does not object to the stipulation; and (2) the decision to stipulate is a matter of trial tactics and strategy." People v. Clendenin, 939 N.E.2d 310, 323-24 (Ill. 2010); see also Tribble, 67 A.3d 210, ¶¶ 36-37. Courts have further explained "that any objection a defendant may have must be made on the record," in order to have afforded the trial court an opportunity for correction. People v. Buie, 817 N.W.2d 33, 43-44 (Mich. 2012); see also Diaz v. United States, 223 U.S. 442, 451-52 (1912) (through counsel's stipulation, defendant voluntarily waived confrontation right "for his own supposed advantage"; reviewing court would not "set aside a judgment" when stipulation was "not at the time complained of" (quoting People v. Murray, 17 N.W. 843, 844 (Mich. 1883))); United States v. Joseph, 333 F.2d 1012, 1013 (6th Cir. 1964) (confrontation right "may be effectively waived by counsel in open court in the presence of an accused who indicates no dissent"); but cf. Tribble, 67 A.3d 210, ¶ 37 (finding "no authority" for "proposition that counsel can stipulate to the admission of out-of-court testimony thereby waiving defendant's Confrontation Clause rights in the face of defendant's express objection"). As succinctly stated by one court, when a decision "constitutes [counsel's] reasonable trial strategy, which is presumed, the right of confrontation may be waived by defense counsel as long as the defendant does not object on the record." Buie, 817 N.W.2d at 44.
¶22 Thus, contrary to Jackson's assertions, counsel's stipulation to waive Jackson's presence at M.Z.'s deposition does not, in and of itself, establish that counsel performed deficiently. And, because Jackson never objected at trial to counsel's waiver of his presence at M.Z.'s deposition, he is bound by that waiver unless he can show it was not "a matter of trial tactics and strategy." Clendenin, 939 N.E.2d at 323; see also Taylor v. Illinois, 484 U.S. 400, 418 (1988) ("[p]utting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences" of lawyer's tactical decisions). To make that showing, he "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
¶23 In light of this standard, Jackson has not made a colorable showing that counsel performed deficiently in waiving Jackson's presence at the deposition. For example, one possible "reasoned basis" for counsel's waiver, see Meeker, 143 Ariz. at 260, was an avoidance of M.Z.'s in-person identification of Jackson. In his petition for review, Jackson emphasizes—as his attorney had in closing argument—that M.Z. never made an eyewitness identification, and he asserts his attorney should have questioned M.Z. about his alleged failure to identify Jackson in photographic lineups. But had counsel not waived Jackson's presence at the videotaped deposition, M.Z. might well have had an opportunity to make an in-person identification of him there, possibly foreclosing that aspect of counsel's argument at trial. Jackson has not made a colorable showing that counsel's decision, which avoided that risk, was not a matter of reasoned strategy.
¶24 Moreover, we agree with the trial court that Jackson failed to make a colorable showing of prejudice from counsel's waiver of his attendance at M.Z.'s deposition. As the court noted, Jackson could not personally have questioned M.Z., and he has shown no reasonable probability that the result of his trial would have been different had he attended the deposition. See Meeker, 143 Ariz. at 264 ("Proof of ineffectiveness must be a demonstrable reality rather than a matter of speculation.").
Had Jackson personally objected or otherwise dissented to counsel's waiver in the trial court and then raised the issue on direct appeal, a different "harmless error" standard of review might have applied. See, e.g., Coy v. Iowa, 487 U.S. 1012, 1021-22 (1988) (harmless error review for trial court error denying face-to-face confrontation). But even when a "structural error" has been identified, the United States Supreme Court has explained that the greater "costs and uncertainties" associated with post-conviction relief "justify a different standard for evaluating" the claim, "depending on whether it is raised on direct review or raised instead in a claim alleging ineffective assistance of counsel." Weaver v. Massachusetts, ___ U.S. ___, ___, 137 S. Ct. 1899, 1911-12 (2017) (claim that counsel was ineffective for failing to object to public-trial violation during jury selection required showing of prejudice; defendant made no showing of reasonable probability of different result under Strickland and no alternative showing of "fundamental unfairness"—even assuming, without deciding, that such alternative showing would have been sufficient).
Disposition
¶25 For the foregoing reasons, although we grant review, we deny relief from the trial court's order summarily dismissing Jackson's petition for post-conviction relief.