Opinion
No. 2 CA-CR 2013-0449-PR
04-10-2014
THE STATE OF ARIZONA, Respondent, v. DAMIEN ANTHONY VASQUEZ, Petitioner.
Barton & Storts, P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Pima County
No. CR20110802001
The Honorable Deborah Bernini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Damien Vasquez petitions this court for review of the trial court's order summarily dismissing his petition for postconviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). Vasquez has not met his burden of demonstrating such abuse here.
¶2 Vasquez was convicted after a jury trial of possession of a dangerous drug (methamphetamine) and possession of drug paraphernalia. He was sentenced to concurrent, mitigated prison terms, the longer of which is six years. We affirmed his convictions and sentences on appeal. State v. Vasquez, No. 2 CA-CR 2012-0093 (memorandum decision filed Apr. 15, 2013).
¶3 Vasquez sought post-conviction relief, arguing in his petition that trial counsel had been ineffective in failing to file a motion to suppress evidence challenging the propriety of the traffic stop and detention that led to discovery of the methamphetamine and paraphernalia, and in failing to object to the admission of the methamphetamine on the ground that a chain of custody had not been established. The trial court summarily denied relief, concluding, inter alia, that a motion to suppress likely would not have been granted and an objection based on foundation "would have been overruled."
¶4 On review, Vasquez claims the trial court erred in rejecting his claim that counsel was ineffective for failing to object to the methamphetamine evidence on chain-of-custody grounds. To present a colorable claim of ineffective assistance of counsel, Vasquez must show that counsel's performance was deficient under prevailing professional norms and that the deficient performance prejudiced him. State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). "A colorable claim of post-conviction relief is 'one that, if the allegations are true, might have changed the outcome.'" State v. Jackson, 209 Ariz. 13, ¶ 2, 97 P.3d 113, 114 (App. 2004), quoting State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993).
¶5 We agree with the trial court that Vasquez's claim fails because he has not shown resulting prejudice—that is, a reasonable likelihood that the court would have sustained an objection based on defects in the evidence's chain of custody. In order to secure admission of drug evidence, the state must establish a chain of custody between the substance seized and the substance tested or presented at trial. See State v. Davis, 110 Ariz. 51, 53, 514 P.2d 1239, 1241 (1973). To do so, "the state must show continuity of possession, but it need not disprove 'every remote possibility of tampering.'" State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996), quoting State v. Hardy, 112 Ariz. 205, 207, 540 P.2d 677, 679 (1975). Accordingly, the state need not call every person who could have come into contact with the evidence. State v. McCray, 218 Ariz. 252, ¶ 9, 183 P.3d 503, 507 (2008). To the extent that the chain is incomplete, those concerns generally go to weight of the evidence rather than its admissibility. State v. Morales, 170 Ariz. 360, 365, 824 P.2d 756, 761 (App. 1991); see McCray, 218 Ariz. 252, ¶ 15, 183 P.3d at 508 (gaps or conflicts in officer's testimony regarding chain of custody went to weight rather than admissibility).
This procedure is required for drug evidence because such evidence is "readily susceptible to alteration and substitution." Davis, 110 Ariz. at 53, 514 P.2d at 1241. Chain-of-custody evidence, like any other foundational evidence, demonstrates to the factfinder that the evidence is what its proponent claims it to be. See Ariz. R. Evid. 901(a); State v. McCray, 218 Ariz. 252, ¶ 9, 183 P.3d 503, 507 (2008).
¶6 The evidence presented at trial shows that a plastic baggie containing a crystal substance fell from Vasquez's pant leg while police officer Kirk Jellesma searched him. Although Jellesma did not see the baggie fall, a nearby officer did. One of the officers retrieved the baggie and testified it had been given to Officer Stuart Sherman, who stated that he had come to the scene of the traffic stop and retrieved the baggie, took it to the police station, and placed it into evidence for testing. Sherman testified he received the baggie from Sergeant Kyle Robinson, who apparently had not seen the drugs fall from Vasquez's pant leg. Robinson stated that he had "hand[ed] over [drugs]" to Sherman, but did not identify the baggie or describe the drugs.
¶7 Vasquez claims there is a "lack of evidence" to support a conclusion "that the drugs presented in court" were the substance found at the scene of the traffic stop and retrieved by officers. He argues that the "evidence fails to show from where Sgt. Robinson obtained the substance that Officer Sherman said he received from Sgt. Robinson." We disagree. Although Robinson's testimony is not perfectly clear, a jury could infer from the evidence presented that he had received the baggie from one of the officers who had searched Vasquez, and he had given that baggie to Sherman.
¶8 Vasquez does not suggest there was some other baggie containing a crystalline substance found at the scene of the traffic stop, and as we noted above, Sherman testified that he had received the baggie there. Thus, "there is no evidence to suggest any possibility of substitution or tampering." Davis, 110 Ariz. at 53, 514 P.2d at 1241. Moreover, although Vasquez correctly notes that the chain of custody report lists only Robinson, any inconsistencies in the chain-of-custody evidence go to weight, not admissibility. See McCray, 218 Ariz. 252, ¶ 15, 183 P.3d at 508. The jury reasonably could infer the crystal substance that fell from Vasquez's pant leg was the same substance ultimately found to be methamphetamine. See Ariz. R. Evid. 901(a) (evidence properly authenticated if proponent "produce[s] evidence sufficient to support a finding that the item is what the proponent claims it is"). The trial court would have had no basis upon which to sustain an objection to the evidence based on an inadequate chain of custody.
Because we agree with the trial court that Vasquez has not shown resulting prejudice, we need not address his argument that the court erred in concluding trial counsel's failure to raise the chain-of-custody issue at trial was strategic or that he was entitled to an evidentiary hearing to explore counsel's reasons for not objecting. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68 ("Failure to satisfy either [deficient performance or prejudice] is fatal to an ineffective assistance of counsel claim.").
¶9 For the reasons stated, although review is granted, relief is denied.