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State v. Rusing

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 19, 2018
No. 2 CA-CR 2018-0087-PR (Ariz. Ct. App. Jun. 19, 2018)

Opinion

No. 2 CA-CR 2018-0087-PR

06-19-2018

THE STATE OF ARIZONA, Respondent, v. NICHOLAS THOMAS RUSING, Petitioner.

COUNSEL William G. Montgomery, Maricopa County Attorney By Daniel Strange, Deputy County Attorney, Phoenix Counsel for Respondent Koplow Law Firm P.L.L.C., Phoenix By Lawrence Koplow and ASU Alumni Law Group, Phoenix By Kelly J. Flood Counsel for Petitioner


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NOT FOR PUBLICATION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 Maricopa County
No. CR2013460375001SE
The Honorable Jerry Bernstein, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL William G. Montgomery, Maricopa County Attorney
By Daniel Strange, Deputy County Attorney, Phoenix
Counsel for Respondent Koplow Law Firm P.L.L.C., Phoenix
By Lawrence Koplow and ASU Alumni Law Group, Phoenix
By Kelly J. Flood
Counsel for Petitioner

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:

¶1 Petitioner Nicholas Rusing 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 (App. 2007). Rusing has not sustained his burden of establishing such abuse here.

¶2 After his first jury trial ended in a mistrial, Rusing was convicted of possession of dangerous drugs and possession of drug paraphernalia at a second trial. The trial court imposed enhanced, concurrent, presumptive prison sentences, the longer of which was ten years. The convictions and sentences were affirmed on appeal. State v. Rusing, Nos. 1 CA-CR 15-0666, 1 CA-CR 15-0667 (Ariz. App. Feb. 21, 2017) (consol. mem. decision).

¶3 Rusing thereafter sought post-conviction relief, arguing in his petition that he received ineffective assistance of counsel. He argued counsel should have objected to (1) references made to the first trial, (2) the trial court precluding Rusing from testifying about the death of the friend, A.G., who had been with him at the time of the offense, and (3) certain comments by the prosecutor in closing. He also asserted counsel had failed to interview or call "two material witnesses" and to adequately challenge a testifying police officer. The trial court summarily denied relief.

¶4 On review, Rusing largely repeats his claims and argues the trial court abused its discretion in denying relief without a hearing. A defendant is entitled to a hearing only if he presents a colorable claim for relief, that is, "he has alleged facts which, if true, would probably have changed the verdict or sentence." State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016). "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, ¶ 21 (2006); accord State v. Kolmann, 239 Ariz. 157, ¶ 9 (2016); see also Strickland v. Washington, 466 U.S. 668, 687-88 (1984). "To establish prejudice, a defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Kolmann, 239 Ariz. 157, ¶ 9, quoting Hinton v. Alabama, 571 U.S. 263, ___, 134 S. Ct. 1081, 1089 (2014).

Rusing abandons on review his claim about purported references to the first trial during the second trial. We therefore do not address that claim. See State v. Rodriguez, 227 Ariz. 58, n.4 (App. 2010) (declining to address argument not raised in petition for review).

¶5 On appeal, this court addressed the trial court's having prevented Rusing from testifying about his friend A.G.'s death. Rusing, Nos. 1 CA-CR 15-0666, 1 CA-CR 15-0667, ¶¶ 8-11. We concluded Rusing had failed to demonstrate the court had erred in precluding the evidence because it was not relevant to the question of his guilt. Id. ¶ 9. Although as Rusing points out we addressed the claim in the context of fundamental error due to the lack of objection, we concluded there had been no error, much less fundamental error. Id. ¶¶ 9-11. Because the trial court did not err, we cannot say counsel was ineffective in failing to object to the ruling. The court therefore did not abuse its discretion in so concluding.

¶6 We likewise agree the trial court properly denied relief as to Rusing's claim that counsel should have objected to certain comments made in closing. In closing arguments, the prosecutor stated that Rusing had admitted to officers that he had used methamphetamine, but had "testified to something totally different yesterday." She went on, "So now the Defendant is lying about his involvement in this case . . . . [T]he Defendant was telling the truth that night." She went on to explain what factors indicated he had told the truth in his first statement. Later, in her rebuttal, the prosecutor discussed the various witnesses' motives to lie in the context of the standards for judging in the credibility of witnesses. She indicated the investigating officer and a security guard at the scene had no motive to lie, while Rusing had "a vested interest in his version of the story."

¶7 Rusing is correct that a prosecutor's personal assurances of a witness's truthfulness are improper. See State v. Vincent, 159 Ariz. 418, 423-24 (1989) (statement by prosecutor, that "the State wouldn't have put [the witness] on the witness stand if [it] didn't believe every word out of his mouth," constituted impermissible vouching); see also State v. King, 110 Ariz. 36, 41-43 (1973) (prosecutor's statements that "I don't think [the witness] ever lied to you. . . . The State believes she was telling the truth," constituted improper vouching). But arguing a witness's credibility is not improper. See State v. Haverstick, 234 Ariz. 161, ¶ 7 (App. 2014) (prosecutor's repeated argument that witness was "credible in every way possible" and that her demeanor "was not faked" did not, in context, constitute impermissible vouching); see also State v. Ramos, 235 Ariz. 230, ¶ 30 (App. 2014) (prosecutor's statement that "what motive would [the witnesses] have to lie in a case like this?" did not constitute misconduct). Rather than affirmatively telling the jury that the state believed the officer was telling the truth, the prosecutor in this case highlighted the circumstances surrounding the officer's and guard's testimony that indicated their reliability. As such, the prosecutor's statements did not constitute improper vouching. Therefore, counsel's failure to object did not constitute deficient performance, and the trial court properly rejected Rusing's claim.

¶8 Rusing also contends counsel was ineffective in "fail[ing] to interview and call two key witnesses." In his "[d]eclaration . . . in support" of his petition, Rusing stated he had asked his attorney to call as witnesses two friends who had been with Rusing and A.G. earlier on the night of the offense and who knew that A.G. used methamphetamine and Rusing did not. Although Rusing provided first names, he did not, "indicate the names of witnesses nor include affidavits containing what testimony they would have offered." State v. Borbon, 146 Ariz. 392, 399 (1985). And "Rule 32 does not require the trial court to conduct evidentiary hearings based on mere generalizations and unsubstantiated claims that people exist who would give favorable testimony." Id.

¶9 Next, Rusing asserts that counsel should have impeached the investigating officer based on a purported inconsistency between his report and a security video from the scene. He maintains the report states the officer saw two people smoking methamphetamine, while the security video "did not show that, as [the officer] admitted at trial." But, at trial, although the officer admitted that he had not seen Rusing smoking on the video, he stated that he had seen A.G. pass the pipe to Rusing. Counsel questioned him extensively while showing still shots from the video, challenging the officer's account of what he had seen. Counsel did not question the officer about his report on this point, but the report was not admitted into evidence and was released to the state, so we cannot review its contents and therefore presume it would support the court's ruling that counsel's performance was not deficient. Cf. State v. Zuck, 134 Ariz. 509, 512-13 (1982) (on direct appeal, "[i]t is the duty of counsel who raise objections on appeal to see that the record before us contains the material to which they take exception"). Similarly, although Rusing suggests counsel should have challenged the officer with testimony from the first trial, he does not direct us to anything in that testimony that would have impeached the officer or otherwise aided his defense. See Ariz. R. Crim. P. 32.5(a), (d), 32.9(c)(4)(B).

¶10 Finally, Rusing argues "[t]rial counsel was inexperienced" and contends the "trial court should have scheduled an evidentiary hearing to determine what trial experience . . . trial counsel had before undertaking Rusing's defense." Rusing cites no authority for this proposition, and we are aware of none. Cf. State v. Salazar, 173 Ariz. 399, 414-15 (1992) (counsel not ineffective solely based on inexperience; Strickland standard must be met).

¶11 Although we grant the petition for review, we deny relief.


Summaries of

State v. Rusing

ARIZONA COURT OF APPEALS DIVISION TWO
Jun 19, 2018
No. 2 CA-CR 2018-0087-PR (Ariz. Ct. App. Jun. 19, 2018)
Case details for

State v. Rusing

Case Details

Full title:THE STATE OF ARIZONA, Respondent, v. NICHOLAS THOMAS RUSING, Petitioner.

Court:ARIZONA COURT OF APPEALS DIVISION TWO

Date published: Jun 19, 2018

Citations

No. 2 CA-CR 2018-0087-PR (Ariz. Ct. App. Jun. 19, 2018)