Opinion
2 CA-CR 2024-0142-PR
10-16-2024
THE STATE OF ARIZONA, Respondent, v. CHRIS THOMAS GOMEZ, Petitioner.
Sherick Law Office P.C., Tucson By Steven P. Sherick and Adam N. Bleier P.C., Tucson By Adam N. Bleier Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20163385001 The Honorable Bryan B. Chambers, Judge
Sherick Law Office P.C., Tucson By Steven P. Sherick and Adam N. Bleier P.C., Tucson By Adam N. Bleier Counsel for Petitioner
Presiding Judge Sklar authored the decision of the Court, in which Vice Chief Judge Eppich and Judge Brearcliffe concurred.
MEMORANDUM DECISION
SKLAR, PRESIDING JUDGE
¶1 Chris Gomez seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed under 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. Ainsworth, 250 Ariz. 457, ¶ 1 (App. 2021) (quoting State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007)). Gomez has not sustained his burden of establishing such abuse here.
¶2 After a jury trial, Gomez was convicted of sexual assault and sentenced to 5.75 years' imprisonment. On appeal, we reversed Gomez's conviction and remanded for a new trial. State v. Gomez, No. 2 CA-CR 2018-0052 (Ariz. App. Aug. 8, 2019) (mem. decision). We reasoned that a DNA analyst's testimony that Gomez's profile contained the same two alleles as an inconclusive minor Y-DNA profile found on the victim's external genital swabs was inadmissible on Rule 403, Ariz. R. Evid., grounds. Id. ¶¶ 33-34. The Arizona Supreme Court vacated our decision, concluding that evidence was properly admitted, and remanded for us to resolve an unrelated question regarding a detective's opinion testimony. State v. Gomez, 250 Ariz. 518, ¶¶ 1, 35 (2021). Finding no fundamental error with respect to that issue, we affirmed Gomez's conviction and sentence. State v. Gomez, No. 2 CA-CR 2018-0052 (Ariz. App. Apr. 20, 2021) (mem. decision).
¶3 Gomez thereafter sought post-conviction relief, arguing trial counsel had been ineffective in failing to present testimony from a DNA expert to contradict the state's expert. Specifically, he contended that an expert could have shown that the purported DNA of a male, who was not the victim's partner, found on the victim's external genitals "was likely a stutter artifact of the laboratory processing and not evidence of a second male's DNA at all." Gomez also claimed counsel had ineffectively cross-examined the state's expert by failing to elicit evidence that the DNA "could have been the result of innocent transfer." He further argued that counsel should have objected at trial to a detective's "improper opinion testimony" to preserve a better scope of review on appeal. The trial court summarily dismissed his claims, and this petition for review followed.
¶4 On review, Gomez argues the trial court erred by dismissing his first two claims of ineffective assistance of counsel. To prevail on those claims, Gomez must "demonstrate that counsel's conduct fell below an objective standard of reasonableness and that he was prejudiced thereby." State v. Bigger, 251 Ariz. 402, ¶ 8 (2021) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). We must therefore consider, "in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." Id. (quoting State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017)). In evaluating counsel's conduct, tactical decisions will not give rise to a claim of ineffective assistance unless counsel's decisions had no reasoned basis. State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006). And a defendant is entitled to an evidentiary hearing on his claims only if "he presents a colorable claim, that is a claim which, if defendant's allegations are true, might have changed the outcome." State v. Gutierrez, 229 Ariz. 573, ¶ 25 (2012) (quoting State v. Watton, 164 Ariz. 323, 328 (1990)).
Because he does not contend the trial court erred with regard to his third claim, he has waived any such argument, and we do not address it further. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue.").
¶5 Gomez reasserts that trial counsel was ineffective for failing to hire a DNA expert to investigate whether the inconclusive DNA results were "stutter" rather than a potential match to his profile. He contends counsel's "sole strategy" as to the DNA evidence was to attempt to have it precluded before trial. Gomez's argument is contrary to the record. Counsel, who had significant experience in cases involving DNA evidence, explained that he did not hire an expert because the state's expert, who essentially said the DNA results "should not be used," "became our witness on that issue." Counsel further explained that although he had noticed that result could have shown stutter rather than the presence of a second male contributor, he thought the state's expert saying that considering the DNA results would be "bad science" was "a much stronger argument" than stutter. We thus cannot say the trial court erred in finding counsel's conduct was not ineffective. See Denz, 232 Ariz. 441, ¶ 11 ("[A]lthough counsel has a duty to engage in adequate investigation of possible defenses, counsel may opt not to pursue a particular investigative path based on his or her reasoned conclusion that it would not yield useful information or is otherwise unnecessary in light of counsel's chosen trial strategy.").
¶6 Gomez similarly maintains trial counsel was ineffective in failing to develop a theory that any DNA found on the victim's exterior genitals was innocently transferred by the victim. Counsel explained that he had not developed that theory because the defense position was to use the state's expert opinion that the DNA evidence "meant nothing and [the expert] couldn't draw any conclusions from them." Whether and to what extent to develop a defense theory is manifestly tactical in nature. See State v. Smith, 244 Ariz. 482, n.1 (App. 2018) (reasoned decision to focus on what counsel believes are strongest arguments is tactical decision that cannot form basis of ineffective assistance claim). The trial court thus did not err in finding this claim not colorable.
¶7 We grant review but deny relief.