Opinion
No. 2 CA-CR 2017-0089-PR
05-25-2017
THE STATE OF ARIZONA, Respondent, v. JAMES JOSEPH STARK, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Susan L. Luder, Deputy County Attorney, Phoenix Counsel for Respondent James J. Stark, Florence 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NOT FOR PUBLICATION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 Maricopa County
No. CR2010102892001DT
The Honorable Carolyn K. Passamonte, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Susan L. Luder, Deputy County Attorney, Phoenix
Counsel for Respondent James J. Stark, Florence
In Propria Persona
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Miller and Judge Howard concurred. VÁSQUEZ, Presiding Judge:
The Hon. Joseph W. Howard, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 James Stark seeks review of the trial court's order summarily dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. For the following reasons, we grant review, but we deny relief.
Background
¶2 After a jury trial, Stark was convicted of seven counts of sexual conduct with a minor, three counts of child molestation, two counts of kidnapping, three counts of sexual abuse, one count of furnishing obscene or harmful items to a minor, one count of public sexual indecency to a minor, and one count of indecent exposure. All of the offenses involved his step-granddaughter and were committed between her seventh and ninth birthdays. Stark was sentenced to a combination of concurrent and consecutive prison terms, including two consecutive life sentences, each without the possibility of release for thirty-five years. We affirmed his convictions and sentences on appeal. State v. Stark, No. 1 CA-CR 11-0625 (Ariz. App. Feb. 10, 2014) (mem. decision).
¶3 Stark filed a timely notice of post-conviction relief and, after appointed counsel reviewed the record and found no issue to raise in a Rule 32 proceeding, he filed a pro se petition alleging claims of ineffective assistance of trial and appellate counsel and newly discovered evidence that the state had violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose colposcopic photographs taken during an examination of the victim. The trial court found Stark failed to state a colorable claim for relief and summarily dismissed his petition. See Ariz. R. Crim. P. 32.6(c). This petition for review followed.
A "colposcope" is "[a]n endoscopic instrument that allows direct observation of the epithelia of the vagina and cervix." Colposcope, The American Heritage Dictionary 366 (5th ed. 2011).
Discussion
¶4 On review, Stark argues the trial court "applied an unreasonable application of the facts" in dismissing his petition, "requiring this court to review those adverse rulings." He also maintains the trial court "is not an Appellate Court and exceeded its jurisdiction" in denying his claims, thereby "denying . . . his constitutional right to appeal these issues." In addition, he asserts the court "lost its jurisdiction to convict or sentence [him] due to the numerous due process violations during trial and Post-Conviction Relief [proceedings]." We review a trial court's summary dismissal for an abuse of discretion. State v. Bennett, 213 Ariz. 562, ¶ 17, 146 P.3d 63, 67 (2006). We find none here.
Jurisdiction
¶5 Stark is mistaken that the trial court exceeded its jurisdiction in denying his claims for post-conviction relief. See State v. Herrera, 183 Ariz. 642, 645-46, 905 P.2d 1377, 1380-81 (App. 1995) (trial court's jurisdiction to address Rule 32 claims, including claims of ineffective assistance of appellate counsel, does not "usurp" authority of appellate court). Stark has already exercised his constitutional right to appeal, see Stark, No. 1 CA-CR 11-0625, and, in this proceeding, his right to claim ineffective assistance of trial and appellate counsel, see Herrera, 183 Ariz. at 645-46, 905 P.2d at 1380-81. And, although we are aware of no authority that would support Stark's suggestion that the court "lost its jurisdiction to convict or sentence" him, we will not address this issue because it was never presented or considered below. See Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review shall contain "[t]he issues which were decided by the trial court and which the defendant wishes to present" for review); see also State v. Ramirez, 126 Ariz. 464, 468, 616 P.2d 924, 928 (App. 1980).
Undisclosed Colposcopic Photographs
¶6 Although the trial court did not address Stark's claim regarding undisclosed, colposcopic photographs of the victim in the context of newly discovered evidence under Rule 32.1(e), it found the photographs were consistent with a forensic nurse's testimony "that she observed no evidence of damage to the victim's hymen and observed no physical injury or physical trauma to the minor child victim." It concluded, "Photos confirming her testimony would have been cumulative and held no additional exculpatory value."
The trial court addressed Stark's claim regarding the photographs as if it were a claim of ineffective assistance of counsel and found Stark had failed to show prejudice. The court's analysis, however, is equally relevant when considering the issue as a claim of newly discovered evidence under Rule 32.1(e). See State v. Roseberry, 237 Ariz. 507, ¶ 7, 353 P.3d 847, 848 (2015) ("We will affirm a trial court's decision" in a Rule 32 proceeding "if it is legally correct for any reason").
¶7 Stark argues, as he did below, that the photographs were material "to rebut" the nurse's hand-drawn diagram, which showed an area of redness found during her examination. But the nurse testified that, because the redness was still present six days later, it was not likely caused from the "specific trauma" of the alleged digital penetration that had led to the victim's original examination. We are unpersuaded by Stark's speculation that the jury may have found him guilty based on their mistaken impression of the drawing, "regardless of the nurse's testimony," or his resulting assertion that, because the state failed to disclose the colposcopic photographs, his conviction "must be reversed." Cf. State v. Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d 226, 230 (App. 1999) (colorable claim of prejudice for ineffective assistance claim must be based on more than "mere speculation").
¶8 The trial court's findings in considering this issue are supported by the record and are dispositive of Stark's claim of newly discovered evidence. Newly discovered material facts warrant relief only if they "are not merely cumulative" and "probably would have changed the verdict." Ariz. R. Crim. P. 32.1(e). The court correctly found Stark had failed to state a colorable claim for relief with respect the colposcopic photographs. See State v. Amaral, 239 Ariz. 217, ¶ 11, 368 P.3d 925, 928 (2016) (colorable claim is one in which alleged facts, if true, "would probably have changed the verdict").
Stark's claim pursuant to Rule 32.1(e) was not colorable for the additional reason that he failed to submit any evidence to support it. He asserted he learned of the existence of these photographs "after trial," and he acknowledged that the prosecutor may not have been aware of them, suggesting they were in the possession of "other agents of the government." But to state a colorable claim for relief pursuant to Rule 32.1(e), "the evidence must appear on its face to have existed at the time of trial." State v. Bilke, 162 Ariz. 51, 52, 781 P.2d 28, 29 (1989). Stark did not submit copies of the colposcopic photographs or any documentation or affidavits related to them; he thus failed to establish the alleged evidence appeared on its face to have existed at the time of trial.
Appellate Counsel
¶9 Stark next challenges the trial court's conclusion that he failed to state a colorable claim of ineffective assistance of appellate counsel. In our decision on appeal, we addressed Stark's claim of fundamental error resulting from the admission, through the testimony of a police detective, of prior statements made by the child victim. According to that decision, Stark's attorney had argued he was prejudiced by the admission of those statements because they provided the only evidence of his guilt on three of the counts charged, and this court addressed his claim with respect to each of those counts. Stark, No. 1 CA-CR 11-0625, ¶¶ 6-33. We affirmed the convictions on the three challenged counts.
¶10 In his petition for post-conviction relief, Stark maintained his appellate counsel was ineffective in failing to argue the detective's testimony about the victim's prior consistent statements constituted reversible error as to all counts charged. The trial court noted Stark offered no evidence that the challenged statements were relevant or prejudicial with respect to any counts other than those addressed in the decision on appeal, and so had failed to establish a colorable claim of ineffective assistance of appellate counsel.
¶11 On review, Stark maintains the trial court's ruling was an "unreasonable application of the facts." As in his petition below, he relies on State v. Taylor, 196 Ariz. 584, 2 P.3d 674 (App. 1999), and State v. Vess, 157 Ariz. 236, 756 P.2d 333 (App. 1988), to maintain appellate counsel should have challenged the admission, through the detective's testimony, of other statements the victim had made in her interview and should have argued those admitted statements, in addition to the statements considered on appeal, prejudiced him as to all counts charged. Taylor and Vess each involved the erroneous admissions of recordings of full interviews of child victims. Taylor, 196 Ariz. at 584, ¶¶ 3-4, 11, 2 P.3d at 677-78; Vess, 157 Ariz. at 238, 756 P.2d at 335. In contrast here, the court did not admit a recording of the victim's full interview at Stark's trial; instead, the detective was questioned about specific statements the victim had made. Neither Taylor nor Vess stands for the proposition that the admission of any statement by a victim, when admitted through the testimony of another witness, necessarily constitutes reversible error as to all offenses charged. See Taylor, 196 Ariz. 584, ¶ 15, 2 P.3d at 679 (reviewing court will not reverse conviction for improper admission of evidence absent "reasonable probability that the verdict would have been different had the evidence not been admitted"), quoting State v. Lacy, 187 Ariz. 340, 349, 929 P.2d 1288, 1297 (1996).
¶12 As the trial court observed, Stark's petition for post-conviction relief did not explain why he believes the particular statements admitted through the detective's testimony prejudiced him with respect to specific counts of his indictment. Having failed to identify how appellate counsel might have argued those statements were relevant to his specific convictions, he failed to state a colorable claim of deficient performance or prejudice. See Herrera, 183 Ariz. at 647, 905 P.2d at 1382 (claim of ineffective assistance of appellate counsel not colorable absent "evidence that the failure to raise additional issues fell below prevailing professional norms and would have changed the outcome of the appeal"); see also Bennett, 213 Ariz. 562, ¶ 22, 146 P.3d at 68 (noting "strong presumption" of appellate counsel's competence that may be overcome by identifying "issues that are clearly stronger than those selected for appeal"). Stark presented no such evidence in his petition for post-conviction relief, and the court did not abuse its discretion in finding Stark failed to establish a colorable claim of ineffective assistance of appellate counsel.
In an appendix to his petition for review, Stark has annotated his petition for post-conviction relief, apparently to suggest on review a connection between the challenged statements and counts of the indictment. But we will not address "issues first presented in a petition for review . . . [that] have obviously never been presented to the trial court for its consideration." Ramirez, 126 Ariz. at 468, 616 P.2d at 928. Moreover, by failing to attach the briefs prepared by appellate counsel to his petition for post-conviction relief, Stark failed to provide the trial court with even the most basic means to assess a claim of deficient performance. See Ariz. R. Crim. P. 32.5 ("Affidavits, records, or other evidence currently available to the defendant supporting the allegations of the petition [for post-conviction relief] shall be attached to it.").
Trial Counsel
¶13 Stark also challenges the trial court's finding that his claims of ineffective assistance of trial counsel are "without merit." In its dismissal order, the court stated it "disagree[d] with" Stark's analysis of trial counsel's performance, finding "counsel presented a defense, argued DNA[] evidence and examined and cross examined witnesses in an objectively reasonable manner." In addition, the court found Stark "failed to demonstrate that he suffered any prejudice as a result of tactical decisions made by trial counsel." Stark maintains the court abused its discretion by "merely disagreeing with [him] on these issues," "without some type of explanation," and he seeks review of the court's ruling with respect to many of the allegations raised in his petition for post-conviction relief.
Deoxyribonucleic acid.
On review, Stark maintains his trial counsel was ineffective because he failed to (1) challenge the detective's testimony about the victim's prior statements; (2) obtain a DNA expert for the defense or conduct an adequate DNA investigation before trial; (3) elicit testimony about tests, if any, performed on the victim's vaginal aspirate, to establish it "did not contain [Stark's] DNA, which it should have if [the victim's] allegations were true"; (4) argue that the location of the victim's DNA on a vibrator "prov[ed]" that "she and she alone used the vibrator on herself and [Stark] was not involved"; (5) elicit testimony from the victim's stepbrother that his mother had told him to lie about the charged incidents; and (6) contact or interview a prospective witness identified by Stark's former counsel. To the extent Stark's petition for post-conviction relief contained other allegations of ineffective assistance of counsel, he has not raised them on review and, therefore, has waived them. See Ariz . R. Crim. P. 32.9(c)(1) (failure to raise issue in petition for review "shall constitute waiver of appellate review of that issue").
¶14 To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below prevailing professional norms and that this deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985). Thus, to state a colorable claim and avoid summary dismissal, Stark was required to "offer some demonstration that the attorney's representation fell below that of the prevailing objective standards . . . [and] some evidence of a reasonable probability that, but for counsel's unprofessional errors, the outcome of the [proceeding] would have been different." Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d at 230.
¶15 Courts "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689. Moreover, tactical or strategic decisions, such as "what witnesses to call," rest with counsel, State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461, 728 P.2d 674, 680 (App. 1986).
¶16 In challenging his trial attorney's investigation of the case, Stark maintains counsel performed deficiently in failing to retain a DNA expert, as he contends the "record clearly shows" his attorney "conducted his DNA investigation during trial," and not before. He also argues his lawyer performed deficiently because he failed to interview, or call to testify, a prospective out-of-state witness identified by Stark's former counsel.
¶17 An attorney's "particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. Here, two forensic examiners testified about the two-stage procedure for analysis of evidence applied in this case. The serologist explained that she first "analyzes evidence for biological material," "such as semen, blood, or saliva," and preserves that evidence for later analysis by a DNA analyst. As the DNA analyst explained, the serologist functions in a "triage" capacity, because "it's just impossible" to conduct DNA analysis on everything submitted by police agencies; thus, if the serologist identifies bodily fluids, the sample will be moved on for DNA analysis.
¶18 In this case, the serologist tested samples included in the sex-crime-evidence kit for biological material, and she also swabbed the tops and bottoms of two vibrators alleged to have been used in some of the offenses. She tested some items from the sex-crime-evidence kit for semen and other items for sperm, and she found neither in any of the samples.
¶19 In the second phase of the analysis, a criminalist examined the swabs from the vibrators for evidence of DNA. According to her report and testimony, the analysis of swabs from the vibrators showed a mixture of DNA from at least two individuals. From a swab of material taken from the top of one of the vibrators, she could identify the victim as the major contributor of the recovered DNA. But, although analysis of other swabs from the vibrators showed some limited matches to the victim's DNA, the most that could be said was that she "could not be excluded" as the major contributor of those samples. Analysis of the minor contributor(s) to the recovered DNA was, in all instances, "inconclusive due to the presence of insufficient DNA," and thus "inconclusive" on the question of whether Stark could be included or excluded as a contributor of the DNA found. Preliminary tests on four external genital swabs and four vaginal vestibule swabs taken from the victim established that no male cells were present on the samples, and so no further analysis was required.
Based on the criminalist's report, DNA analysis was not performed on the following items from the sex-crime-evidence kit: anal swabs, an anal smear, a vaginal smear, or vaginal aspirate.
¶20 Based on this testimony, no DNA evidence incriminated Stark at trial, a fact his attorney emphasized through cross-examination and argument. Absent any evidence that a defense expert would have reached different conclusions, prompted a different line of questioning, or testified that the absence of Stark's DNA on tested samples "proved" his innocence, Stark has failed to colorably show either deficient performance or resulting prejudice. Cf. State v. Denz, 232 Ariz. 441, ¶¶ 3, 19, 306 P.3d 98, 100, 104 (App. 2013) (claim of insufficient investigation of child abuse expert colorable when supported by affidavit from forensic pathologist rebutting conclusions of state's experts).
¶21 Similarly, Stark's charge that his attorney failed to interview a witness was supported only by electronic mail from his previous attorney suggesting the name of an out-of-state resident who would be "good" for Stark's defense. He did not attach an affidavit from that person or even identify the substance of any testimony she might have offered. The trial court did not abuse its discretion in finding this claim was not colorable. "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." State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (claim not colorable in absence of affidavit from omitted witness).
¶22 Stark's remaining claims of ineffective assistance of trial counsel appear to involve matters of trial tactics, supported only by Stark's own affidavit. To overcome the presumption that his attorney pursued a sound trial strategy, a petitioner must show his decisions were not tactical in nature, but the result of "ineptitude, inexperience or lack of preparation." State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). Thus, "[d]isagreements as to trial strategy or errors in trial tactics will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984); see, e.g., State v. Gerlaugh, 144 Ariz. 449, 462, 698 P.2d 694, 707 (1985) (decision as to what witnesses should be called to testify is strategic one "that will not normally support a claim of ineffective assistance of counsel"); State v. Moreno, 153 Ariz. 67, 69, 734 P.2d 609, 611 (App. 1986) (defendant's allegations regarding "minutiae of the defense presentation," such as attorney's decisions about questioning of witnesses and refraining from making objections, "could be viewed as . . . tactical move[s]" and did not support ineffectiveness claim).
In Stark's affidavit, he alleged his attorney had been in a "confused state" at trial and had "neglected his duties" due to "alcohol related problems," an allegation he has abandoned on review. See supra note 7.
¶23 In this case, counsel's failure to object to the detective's testimony about statements the victim made in her interview may well have been strategic, to avoid the jury's impression that the defense was attempting to hide evidence. Similarly, we have reviewed the testimony and cross-examination of the victim's stepbrother, and it was generally favorable for Stark's case. He testified the victim had told him Stark showed her some pictures, but had not described them, and he said she never told him of any of the incidents of molestation or sexual conduct that led to Stark's charges. Stark has offered no evidence that his attorney made anything but a reasoned tactical decision when he declined to impeach the boy with any prior inconsistent statement; to do so might have impaired the credibility of favorable testimony. Through his cross-examination of the serologist, Stark's attorney established that no biological material associated with Stark was found in the victim's vaginal aspirate, and he questioned during argument why, if the victim had told the truth about a recent incident, Stark's DNA had not been found in her vagina.
¶24 Moreover, Stark speculates that test results favorable to Stark were withheld by the state, and he asserts the absence of his DNA in vaginal aspirate would have proved the victim's allegations were untrue. There is no evidence to support such a claim and no expert affidavit to support Stark's questionable conclusion about the imagined results of any such tests, if they were performed at all. Stark's mere speculation is insufficient to support a colorable claim of prejudice. See Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d at 230.
Disposition
¶25 For the foregoing reasons, although we grant review, we deny relief.