Opinion
No. 2 CA-CR 2017-0189-PR
10-25-2017
THE STATE OF ARIZONA, Respondent, v. DONALD RAY PALMER, Petitioner.
Donald R. Palmer, Tucson 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NOT FOR PUBLICATION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. 31.24. Petition for Review from the Superior Court in Pima County
No. CR20050892
The Honorable Richard S. Fields, Judge
REVIEW GRANTED; RELIEF DENIED
Donald R. Palmer, Tucson
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Petitioner Donald Palmer seeks review of the trial court's order denying his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Palmer has not sustained his burden of establishing such abuse here.
¶2 After a jury trial in 2007, Palmer was convicted of attempted first-degree murder, drive-by shooting, and aggravated assault, all dangerous offenses. Finding Palmer had been convicted of prior serious offenses, the trial court sentenced him to concurrent terms of life in prison without the possibility of release for twenty-five years. This court affirmed the convictions and sentences on appeal. State v. Palmer, No. 2 CA-CR 2007-0118, ¶ 12 (Ariz. App. Sep. 18, 2008) (mem. decision). Palmer thereafter sought and was denied post-conviction relief, and this court denied relief on review. State v. Palmer, No. 2 CA-CR 2010-0100-PR, ¶¶ 2, 4 (Ariz. App. June 25, 2010) (mem. decision).
¶3 In December 2016, Palmer initiated another proceeding for post-conviction relief, arguing in his petition that newly discovered evidence entitled him to relief, specifically that two jurors in his trial "had an ongoing civil case at the time of his criminal trial that dealt with similar claims of assault and harassment." The trial court summarily denied relief, concluding Palmer had not met the requirements for a claim of newly discovered evidence and rejecting Palmer's claim of ineffective assistance of counsel based on counsel's not having further investigated the jurors.
¶4 On review, Palmer asserts the trial court abused its discretion in denying relief, arguing he had exercised diligence and that the evidence met the requirements for relief based on newly discovered evidence. As Palmer acknowledges, to establish a claim for newly discovered evidence, however, a defendant must show that he exercised due diligence in securing the facts. See Ariz. R. Crim. P. 32.1(e)(2). At trial, one of the jurors in question acknowledged she had "been a victim of an assault or domestic violence offense," but stated it would not "affect [her] ability to hear evidence that might be similar" or to "be fair to both sides." She also stated she had been involved in a custody case "[a]bout a year ago," but asserted it would not affect her ability to be fair. She further acknowledged having obtained a protective order against her former husband. The other juror stated he had been divorced three years earlier. Based on this record and the court documents relating to the jurors' legal matters that Palmer submitted with his petition, we agree with the court both that the facts on which Palmer now relies could have been found through an exercise of diligence at the time of trial and that they were unlikely to have changed the verdict. See Ariz. R. Crim. P. 32.1(e). We therefore adopt the court's ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993) (when court has correctly ruled on issues raised "in a fashion that will allow any court in the future to understand the resolution[, n]o useful purpose would be served by this court rehashing the trial court's correct ruling in a written decision").
The records Palmer includes show that as to the first juror, her dissolution was entered in 2000 and the ongoing proceedings at the time of Palmer's trial were child support proceedings. As to the second juror, his dissolution was entered in 2004 (three years before the trial as the juror had stated), and the proceedings at the time of trial were apparently enforcement of spousal support. Palmer also refers to a preliminary injunction in the dissolution, but it does not suggest any domestic violence issues; rather, it just precluded the parties from disposing of assets or relocating the children. --------
¶5 Therefore, although we grant the petition for review, we deny relief.