Opinion
No. 2 CA-CR 2017-0357-PR
02-23-2018
THE STATE OF ARIZONA, Respondent, v. ROBERT JOHN ADKINS, Petitioner.
COUNSEL Marc J. Victor P.C., Chandler By Marc J. Victor 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NOT FOR PUBLICATION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 Mohave County
No. CR201400015
The Honorable Steven F. Conn, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Marc J. Victor P.C., Chandler
By Marc J. Victor
Counsel for Petitioner
MEMORANDUM DECISION
Judge Eppich authored the decision of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred. EPPICH, Judge:
¶1 Robert Adkins seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Adkins has not shown such abuse here.
¶2 After a jury trial, Adkins was convicted of second-degree murder and vulnerable adult abuse stemming from the death of his disabled roommate by blunt-force trauma. The trial court sentenced him to concurrent prison terms, the longer of which was twenty years. We affirmed his convictions and sentences on appeal. State v. Adkins, No. 1 CA-CR 15-0245 (Ariz. App. May 12, 2016) (mem. decision).
¶3 Adkins sought post-conviction relief, arguing his trial counsel had been ineffective by: (1) failing to "request preservation of [the victim's] body" for further examination; (2) declining to call a forensic witness retained by counsel to rebut the testimony of the medical examiner; (3) "telegraph[ing] to the jury" during closing that counsel "did not believe the trial testimony of his client"; and (4) failing to obtain DNA testing of "numerous reddish brown stains" found in the residence. The trial court summarily denied relief. The court determined, among other things, that Adkins had not demonstrated prejudice resulting from counsel's purported failure to preserve evidence or his statements during closing. And the court concluded trial counsel had made a tactical decision to forgo calling the forensic witness. The court noted that, not only had trial counsel avowed in an affidavit that he declined to call the witness as a matter of trial tactics, that tactic was plainly reasonable in light of the potential witness's lackluster credentials and questionable statements in pretrial interviews. This petition for review followed.
Deoxyribonucleic acid.
¶4 On review, Adkins repeats his claims of ineffective assistance and asserts he is entitled to a new trial. To prevail, Adkins "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz, 232 Ariz. 441, ¶ 6 (App. 2013), citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
¶5 There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles, 210 Ariz. 589, ¶ 20 (App. 2005), which Adkins must overcome by providing evidence that counsel's conduct did not comport with prevailing professional norms, see State v. Herrera, 183 Ariz. 642, 647 (App. 1995). Moreover, tactical or strategic decisions rest with counsel, State v. Lee, 142 Ariz. 210, 215 (1984), and we will presume "that the challenged action was sound trial strategy under the circumstances," State v. Stone, 151 Ariz. 455, 461 (App. 1986). 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 (1984).
¶6 To establish prejudice, Adkins "was required to 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Denz, 232 Ariz. 441, ¶ 20, quoting Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., quoting Strickland, 466 U.S. at 694.
¶7 Although Adkins briefly describes the facts underlying his claims that counsel failed to preserve evidence—the victim's body to conduct testing—he does not meaningfully address the trial court's conclusion that he did not demonstrate resulting prejudice. Nor does he develop any argument that the court erred in rejecting his claim that counsel was ineffective during closing for "implying . . . counsel's disbelief of [Adkins]'s testimony on a substantial fact." Thus, he has waived these issues on review, and we do not address them further. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (insufficient argument waives claim on review).
¶8 Adkins dedicates the bulk of his argument to his claim that counsel was ineffective for failing to call at trial the forensic witness counsel had retained. But he ignores the litany of reasons the trial court listed in support of its conclusion that counsel had made a tactical decision in declining to call the witness and, thus, the decision could not support a claim of ineffective assistance. Instead, he seems to contend any conceivable tactical concerns were subordinate because of the purported exculpatory value of the witness's proposed testimony. But the cases he cites do not support his argument, and he has not demonstrated that counsel's decision could have no reasoned basis. See Meeker, 143 Ariz. at 260. Thus, he has not shown the court erred in summarily rejecting this claim.
In addressing whether counsel's decision was tactical, we do not suggest the witness's testimony had any reasonable probability of altering the jury's verdicts.
For example, Adkins cites three cases for the proposition that "[i]t was objectively unreasonable to fail to present existing, directly relevant and contrary forensics evidence." All three cases, however, discuss counsel's failure to consult a scientific expert or interview a potential witness, not the decision to forgo calling a particular witness. See Showers v. Beard, 635 F.3d 625, 633-34 (3d Cir. 2011); Reynoso v. Giurbino, 462 F.3d 1099, 1112 (9th Cir. 2006); Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011). The sole case Adkins cites addressing the relevant question, a decision by a federal magistrate, is readily distinguishable even were it properly citable in this court as persuasive authority—most notably because defense counsel had informed the jury he would call the expert and then failed to do so. Souliotes v. Grounds, No. 1:06-cv-00667, 2013 WL 875952, at *32, *45 (E.D. Cal. Mar. 7, 2013), adopted in part by 2013 WL 1563273 (E.D. Cal. April 12, 2013); see also Ariz. R. Sup. Ct. 111(c)(1)(C). Nothing in that case undermines the trial court's decision here.
¶9 We grant review but deny relief.