Opinion
1 CA-CR 23-0428 PRPC
07-30-2024
STATE OF ARIZONA, Respondent, v. DON L MEEKER, Petitioner.
Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent Law Office of Stephen M. Johnson Inc., Phoenix By Stephen M. Johnson 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Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court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. CR2016-135701-001 The Honorable Pamela S. Gates, Judge
Maricopa County Attorney's Office, Phoenix By Robert E. Prather Counsel for Respondent
Law Office of Stephen M. Johnson Inc., Phoenix By Stephen M. Johnson Counsel for Petitioner
Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in which Judge Anni Hill Foster and Judge Angela K. Paton joined.
MEMORANDUM DECISION
BAILEY, JUDGE
¶1 Don L. Meeker petitions for review of the superior court's order dismissing his post-conviction relief ("PCR") petition filed under Arizona Rule of Criminal Procedure ("Rule") 32. We grant review but deny relief.
FACTS AND PROCEDURAL HISTORY
¶2 In July 2016, Meeker stabbed B.M. A grand jury indicted Meeker for one count of aggravated assault, a class 3 dangerous felony. Meeker's first trial ended in a mistrial after the jury failed to reach a verdict. In his second trial, Meeker was convicted as charged and sentenced to life with the possibility of release after 25 years. We affirmed Meeker's conviction and sentence on appeal. See State v. Meeker, 1 CA-CR 18-0402, 2020 WL 5796170, at *1, ¶ 1 (Ariz. App. Sept. 29, 2020) (mem. decision).
We use initials to protect the victim's privacy. See State v. Maldonado, 206 Ariz. 339, 341, ¶ 2 n.1 (App. 2003).
¶3 Meeker petitioned for PCR, claiming his trial counsel was ineffective. See Ariz. R. Crim. P. 32.1(a). The superior court found Meeker's claims non-colorable and dismissed his petition. This petition for review followed. We have jurisdiction under Arizona Revised Statutes ("A.R.S.") section 13-4239(C) and Rule 32.16(a)(1).
DISCUSSION
¶4 We review the dismissal of a PCR petition for an abuse of discretion. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). Whether Meeker's trial counsel was ineffective is a mixed question of fact and law, and we review the court's legal conclusions de novo. Id.
¶5 "The defendant is entitled to an evidentiary hearing only when he presents a colorable claim-one that, if the allegations are true, might have changed the outcome." State v. Runningeagle, 176 Ariz. 59, 63 (1993) (citation omitted). "[T]he defendant must show that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. While "[a] defendant has exclusive control over the key decisions 'whether to plead guilty, whether to waive a jury trial and whether to testify[,] . . . most trial decisions are trial strategy resting with counsel.'" State v. Medina, 232 Ariz. 391, 402, ¶ 32 (2013) (citation omitted). So long as counsel's conduct has "some reasoned basis," disagreements over trial strategy will not amount to ineffective assistance. State v. Gerlaugh, 144 Ariz. 449, 455 (1985) (citations omitted).
¶6 First, Meeker claims counsel was ineffective for failing to properly object to the victim's testimony after the victim admitted he used marijuana the morning before trial and over the lunch break. Meeker cannot meet either prong of the Strickland test. Meeker's counsel alerted the court to the victim's possible impairment. When the court did not sua sponte strike the victim's testimony, counsel cross-examined the victim extensively about his drug use. In doing so, the victim's credibility was placed squarely before the jury. See State v. Canez, 202 Ariz. 133, 149, ¶ 39 (2002) ("[T]he credibility of witnesses is a matter for the jury." (citation omitted)). And even if counsel had not done so, the record shows that the victim was competent to testify. See Meeker, 1 CA-CR 18-0402, at *2, ¶ 12 ("[T]he record reveals [the victim] fully understood the proceedings and the questions he was asked."); see also State v. Cruz, 218 Ariz. 149, 166, ¶ 106 (2008) ("We presume that a witness is competent to testify." (citations omitted)); State v. Jeffers, 135 Ariz. 404, 420 (1983) ("[A] witness is not rendered incompetent to testify merely because he was under the influence of drugs at the time of the incident about which he is testifying or at the time he testifies." (citations omitted)). Further, in its petition dismissal, the superior court stated it would have denied any motion to strike the victim's testimony or declare a mistrial. Thus, Meeker cannot show deficient performance or prejudice.
¶7 Next, Meeker contends counsel was ineffective for failing to properly investigate and present testimony of Meeker's alibi claim. Meeker also suggests that counsel should have requested an alibi jury instruction. "Rule 32 does not require the [superior] court to conduct evidentiary hearings based on mere generalizations and unsubstantiated claims that people exist who would give favorable testimony." State v. Borbon, 146 Ariz. 392, 399 (1985). Meeker does not identify a specific witness that could offer an alibi. Further, no evidence in the record reasonably supports an alibi defense jury instruction. See State v. Martinez, 196 Ariz. 451, 460, ¶ 36 (2000). Meeker did not testify at his second trial and he points to no other corroborating evidence. Rather, the victim testified that he saw Meeker holding a bloody knife immediately after being stabbed and later identified Meeker in a photo lineup. Meeker, 1 CA-CR 18-0402, at *1, ¶¶ 4-5. Accordingly, the claim was properly dismissed.
¶8 Finally, Meeker asserts counsel was ineffective for failing to call Meeker as a witness or seeking to admit his prior testimony in the second trial. However, the decision to testify rests solely in the defendant's province. Medina, 232 Ariz. at 402, ¶ 32. There is no claim that counsel interfered with Meeker's decision to not testify at the second trial. Nor is there any argument that counsel would have succeeded in admitting Meeker's prior testimony during the second trial. Accordingly, Meeker's argument is based on vague and conclusory allegations, and the superior court did not abuse its discretion by dismissing his petition. See State v. Krum, 183 Ariz. 288, 294-95 (1995) (A PCR petition presenting allegations that are vague, conclusory, or wholly incredible is subject to summary dismissal).
CONCLUSION
¶9 We grant review and deny relief.