Opinion
No. 1 CA-CR 13-0893 PRPC
12-03-2015
STATE OF ARIZONA, Respondent, v. PHIL OSUNA GUTIERREZ, Petitioner.
COUNSEL Maricopa County Attorney's Office, Phoenix By Diane Meloche Counsel for Respondent Quarles & Brady, LLP, Phoenix By Isaac M. Gabriel Counsel for Petitioner
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR1998-093163
The Honorable George H. Foster, Jr., Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Maricopa County Attorney's Office, Phoenix
By Diane Meloche
Counsel for Respondent Quarles & Brady, LLP, Phoenix
By Isaac M. Gabriel
Counsel for Petitioner
MEMORANDUM DECISION
Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined. PORTLEY, Judge:
¶1 Petitioner Phil Gutierrez petitions this court to review the dismissal of his petition for post-conviction relief. After considering the petition, and for the reasons stated, we grant review, but deny relief.
I. Procedural Background
¶2 Gutierrez was convicted of second-degree murder after a jury trial in 2000 and was sentenced to nineteen years in prison. We affirmed his conviction and sentence on direct appeal, State v. Gutierrez, 1 CA-CR 00-0409 (Ariz. App. April 17, 2001) (mem. decision), and the trial court denied relief in two subsequent post-conviction relief proceedings. Gutierrez filed a third petition for post-conviction relief in 2009 and raised claims of newly discovered evidence and "actual innocence" based on the results of deoxyribonucleic acid ("DNA") tests. The trial court denied the petition and we denied review. Our supreme court granted review to clarify the procedural requirements of Arizona Revised Statutes ("A.R.S.") section 13-4240(K) regarding post-conviction DNA testing and remanded the matter back to the trial court. State v. Gutierrez, 229 Ariz. 573, 576, 580, ¶¶ 18, 37, 278 P.3d 1276, 1279, 1283 (2012). On remand, the trial court held an evidentiary hearing and, in a thoughtful and thorough ruling, subsequently denied Gutierrez's petition. Gutierrez seeks review of the ruling, as well as rulings on three motions related to the ruling. We have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.9(c) and A.R.S. § 13-4239(C)(2010).
We review the court's rulings as "actions of the trial court" that occurred in the context of the post-conviction relief proceedings. Ariz. R. Crim. P. 32.9(c) ("[A]ny party aggrieved may petition the appropriate appellate court for review of the actions of the trial court.").
II. Factual Background
¶3 Gutierrez sat in the front passenger seat of a car as he and two fellow gang members drove past an outdoor gathering of a rival gang. "Cupis" rode in the back seat behind Gutierrez. Someone in the car fired a rifle through the passenger-side window and shot and killed the victim. Gutierrez, 229 Ariz. at 574, ¶¶ 2-4, 278 P.3d at 1277. A witness testified that the person who fired the gun wore a black hat and covered his face with what appeared to be a bandana. Id. at 575, ¶ 9, 278 P.3d at 1278.
¶4 The trio fled, but the car crashed near the scene. Gutierrez, who hit his head on the windshield during the crash, remained in the front passenger seat while his accomplices fled. Investigators found a black hat ("the first hat") near the car on the ground in the direction Cupis fled. Id. at 574, ¶ 4, 278 P.3d at 1277. Gutierrez's defense was that he was merely present, did not know a shooting would occur, but that Cupis fired the rifle from the back seat of the car. Id. at 575, ¶ 8, 278 P.3d at 1278. Gutierrez, however, had gunshot residue on his hands, id. at ¶ 6, and saliva on a piece of clothing in the car contained Gutierrez's DNA, which suggested he used the clothing to cover his face.
¶5 During trial, the jury asked if investigators tested the first hat for evidence and learned they did not. In closing argument, the State only twice referred to the first hat, and only argued the hat was evidence of gang affiliation. The State specifically acknowledged it did not know if the hat belonged to Gutierrez, and never expressly argued he wore it. During deliberations, the jury asked the court if it must find that Gutierrez was the gunman to convict him of second-degree murder, despite having been instructed on accomplice liability. Id. at ¶ 11. The court, with the parties' consent, informed the jury it need not find Gutierrez was the gunman to convict him of second-degree murder based on accomplice liability and referred the jury back to the instructions on both accomplice liability and mere presence. Id. The jury found Gutierrez guilty of second-degree murder, id. at ¶ 12, but the verdict form did not indicate if he was guilty as a principal or an accomplice.
¶6 Seven years after Gutierrez's conviction, DNA testing of a hair found in the first hat revealed the hair belonged to Cupis. The testing further revealed Gutierrez was not a source of other DNA found on the first hat. Id. at 576, ¶ 15, 278 P.3d at 1279. As a result, Gutierrez filed his third petition for post-conviction relief, arguing the results of the DNA tests were newly discovered evidence that proved Cupis was the shooter. Specifically, he argued that the results of the tests, coupled with Cupis's repeated claims that he was the shooter, and Gutierrez's argument that he had no knowledge that the shooting would occur, established his "actual innocence" pursuant to Rule 32.1(h).
III. The Denial of Relief Based on Newly Discovered Evidence
¶7 Gutierrez argues the trial court abused its discretion by denying his request for relief on the claim of newly discovered DNA evidence. The court, after the evidentiary hearing, found that the DNA evidence did not qualify as newly discovered evidence and Gutierrez was not diligent in discovering the "new" evidence. The court further found that even if the DNA evidence was newly discovered, Gutierrez failed to show it would have altered the verdict.
¶8 We review the decision granting or denying post-conviction relief for an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). For a defendant to obtain post-conviction relief based on newly discovered evidence:
(1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial;State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989).
(2) the motion must allege facts from which the court could conclude the defendant was diligent in discovering the facts and bringing them to the court's attention;
(3) the evidence must not simply be cumulative or impeaching;
(4) the evidence must be relevant to the case;
(5) the evidence must be such that it would likely have altered the verdict, finding, or sentence if known at the time of trial.
¶9 Although Gutierrez claims the newly discovered evidence helps demonstrate his actual innocence, we disagree. First, the mere fact that the first hat was tested for DNA seven years after his conviction does not demonstrate that Gutierrez was diligent in discovering the evidence and bringing it to the court's attention. "Simply because [a] defendant presents the court with evidence for the first time does not mean that such evidence is 'newly discovered.'" State v. Mata, 185 Ariz. 319, 333, 916 P.2d 1035, 1049 (1996). "Newly-discovered material facts alleged as grounds for post-conviction relief are facts which come to light after the trial and which could not have been discovered and produced at trial through reasonable diligence." State v. Dogan, 150 Ariz. 595, 600, 724 P.2d 1264, 1269 (App. 1986) (emphasis added).
¶10 Gutierrez knew about the first hat during the pretrial stages of the proceedings and knew of its potential to contain DNA evidence. At a status hearing on Gutierrez's third petition, Gutierrez, by counsel, told the court that Gutierrez had been "hammering on his attorneys from Day 1" to test the first hat. In his first post-conviction relief proceeding in 2001, Gutierrez argued his trial counsel was ineffective when he failed to seek the "necessary" DNA testing of hair that might be in the first hat. He further argued the State's failure to test the first hat for DNA evidence was prosecutorial misconduct. And as noted in ¶ 5, supra, even the jury inquired at trial if anyone had tested the first hat. Moreover, a criminalist testified at the evidentiary hearing that the available DNA testing at the time of trial was just as good as the testing that was conducted on the first hat seven years later. Therefore, based on the evidence at the hearing, the court did not abuse its discretion by finding that Gutierrez was not diligent in seeking DNA testing. See State v. Hess, 231 Ariz. 80, 82-83, ¶ 8, 290 P.3d 473, 475-76 (App. 2012) (noting it was within a court's discretion to deny relief based on petitioner's ten-year delay in seeking DNA testing).
¶11 Second, the trial court found it was not likely the DNA evidence would have altered the verdict. At trial, the court instructed the jury on criminal liability both as a principal and an accomplice. During the deliberations, the jury asked and was told, with the consent of the parties, that Gutierrez could be found guilty of second-degree murder based on accomplice liability even if he was not the person who actually shot the victim. Although Gutierrez argues there was no evidence of accomplice liability, he cannot now challenge the sufficiency of the evidence to support a conviction based on accomplice liability. Ariz. R. Crim. P. 32.2(a) (any claim a defendant could have raised on direct appeal is precluded); Gutierrez, 229 Ariz. at 580 n.3, ¶ 34, 278 P.3d at 1283 n.3 (noting the record "reflects substantial evidence to support Gutierrez's conviction as an accomplice" and he cannot challenge the sufficiency of that evidence under the guise of a Rule 32 claim). In fact, he argued in his second petition for post-conviction relief in 2005 that the jury convicted him based on accomplice liability. Moreover, the record does not suggest that Gutierrez's second-degree murder conviction hinged on any belief that he, rather than Cupis, wore the first hat. Consequently, we find no abuse of discretion by the trial court in finding the DNA evidence would not have altered the jury's verdict.
The presence of Cupis's hair on the first hat established only that Cupis wore the hat at some point in time, not that he was the shooter. Further, a criminalist testified at the evidentiary hearing that the absence of a person's DNA on a hat does not mean the person did not wear the hat.
¶12 Finally, the trial court found that other evidence in the case undermines Gutierrez's claim that the presence of Cupis's DNA on the first hat would alter the verdict. When a trial court evaluates the exculpatory value of new evidence, "[o]ther evidence that significantly reduces the exculpatory value of the new evidence . . . is clearly relevant to resolving that question" and the court may consider other evidence the State would offer at a new trial in response to the defendant's new evidence. Hess, 231 Ariz. at 83, ¶ 11, 290 P.3d at 476.
¶13 In this case, the other evidence that undermines Gutierrez's claim includes a second black hat investigators found in the car on the console next to the front passenger seat where Gutierrez was found after the accident. As explained below, although the State did not offer the second hat into evidence at trial, post-trial DNA tests on the second hat revealed a mixture of DNA from at least four people, and Gutierrez was a "major contributor" to that mixture of DNA. Therefore, regardless of the results of the DNA tests on the first black hat, Gutierrez's DNA was on the second black hat, and that hat remained in the car beside Gutierrez even after the crash. As a result, the court did not abuse its discretion when it found, after the evidentiary hearing, that the presence of a second black hat with Gutierrez's DNA on it immediately beside the seat where Gutierrez was found virtually eliminated any exculpatory value of the DNA evidence on the first hat.
Although Gutierrez always refers to the second hat as a "grey" hat, the trial court noted, "The second hat can easily be characterized as dark grey and black. In the dim light of the night, set inside a car, even with the street light at the intersection where the shooting took place, the hat could easily be seen as 'black.'"
IV. The Denial of Relief Based on "Actual Innocence"
¶14 Gutierrez also argues the trial court abused its discretion when it denied relief on his claim pursuant to Rule 32.1(h), often referred to as a claim of "actual innocence." Gutierrez argues that based on the new DNA evidence and Cupis's admission that he was the shooter, there is clear and convincing evidence that no reasonable fact-finder would have found Gutierrez guilty of second-degree murder. We disagree.
¶15 Cupis's admission is not new. He sent a letter to the prosecutor just before Gutierrez's trial claiming he was the shooter and Gutierrez was unaware the shooting would occur. Gutierrez, 229 Ariz. at 574-75, ¶ 5, 278 P.3d at 1277-78. However, during the investigation of the homicide, he repeatedly told investigators that Gutierrez was the shooter. Cupis was not called to testify at Gutierrez's trial, and the jury never heard that Cupis claimed he was the shooter. And after the verdict in Gutierrez's trial, Cupis pled guilty to second-degree murder and completed his twelve-year prison sentence by the time of the evidentiary hearing.
¶16 The trial court did not abuse its discretion when it found it was not likely the DNA evidence on the first hat would have altered the verdict. Moreover, Cupis's claim that he was the shooter does not address accomplice liability or that a reasonable fact-finder could find Gutierrez guilty of second-degree murder beyond a reasonable doubt based on accomplice liability. More importantly, Cupis testified at the evidentiary hearing and the trial court found that he was not credible and his version of events "defies credibility." Because the determination of the credibility of witnesses at an evidentiary hearing in a post-conviction relief proceeding rests solely with the trial court, State v. Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988), the court did not abuse its discretion by finding that Gutierrez failed to demonstrate by clear and convincing evidence that no reasonable fact-finder would have found him guilty beyond a reasonable doubt.
V. The Denial of the Motion to Preclude Testimony
¶17 Before the evidentiary hearing, Gutierrez filed a motion to preclude the testimony of Cupis's trial counsel at the evidentiary hearing. Cupis's counsel was then a superior court judge. The State wanted counsel to testify why he believed someone coerced Cupis to take responsibility as the shooter. The court denied the motion to preclude, and allowed counsel to testify.
¶18 Gutierrez now argues that the testimony violated Ethical Rule 1.6 regarding the confidentiality of information related to the representation of a client; that it "likely" violated the attorney/client privilege; that it violated Rule 1.2 of the Arizona Code of Judicial Conduct; and that counsel's testimony was incorrect, based on speculation and conjecture and less credible than Cupis's testimony.
¶19 "The trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion." State v. Amaya-Ruiz, 166 Ariz. 152, 167, 800 P.2d 1260, 1275 (1990). Abuse of discretion is "an exercise of discretion which is manifestly unreasonable, exercised on untenable grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1992). And we will not second guess the court's credibility determinations during the evidentiary hearing. See Fritz, 157 Ariz. at 141, 755 P.2d at 446.
¶20 Despite his arguments, Gutierrez concedes that Cupis's counsel did not testify to anything Cupis told him and only testified about his beliefs based on the circumstances at that time. At the hearing, Cupis's counsel acknowledged that he was still bound by the attorney-client privilege and would not reveal anything that would violate that privilege. And the trial court twice reminded counsel about the privilege. In fact, when the State at one point asked counsel "what exactly" Cupis said, counsel invoked the privilege. Gutierrez does not identify any specific testimony of Cupis's lawyer that revealed confidential information protected by Ethical Rule 1.6 and/or the attorney-client privilege in general, and our review of the record finds none. We also note that the attorney-client privilege belongs to the client, and only the client or someone authorized by law may assert the privilege. State v. Macumber, 112 Ariz. 569, 571, 544 P.2d 1084, 1086 (1976).
¶21 Rule 1.2 of the Code of Judicial Conduct, provides: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." Ariz. R. Sup. Ct. 81, Canon 1.2. Gutierrez argues that an appearance of impropriety occurs where one superior court judge has to weigh the credibility of another superior court judge. We disagree.
¶22 There are no ethical or other rules that prohibit a judge from being called to testify in an evidentiary hearing or trial. The Arizona Rules of Criminal Procedure contemplate that there may be situations where a judge may have to testify before another judge as a witness in a post-conviction relief proceeding. See Ariz. R. Crim. P. 32.4(e). And the judicial ethical canons do not preclude a judge from being called to testify in a trial or evidentiary hearing about matters when he or she was a lawyer. As a result, and most definitely contrary to Gutierrez's argument, when Cupis's former trial lawyer testified there was no appearance of judicial impropriety as our supreme court has defined it in Rule 1.2, or its comments. Consequently, we do not discern an abuse of discretion by the ruling denying Gutierrez's motion to preclude Cupis's trial lawyer from testifying.
VI. Denial of the Motion to Allow Juror Testimony
¶23 Gutierrez also filed a motion to admit the testimony of juror "M" at the evidentiary hearing. Gutierrez sought to admit the juror's testimony to support his claim that the newly discovered DNA evidence on the first hat, coupled with Cupis's claim he was the shooter, would likely have changed the verdict. Again, "[t]he trial court has considerable discretion in determining the relevance and admissibility of evidence, and we will not disturb its ruling absent a clear abuse of that discretion." Amaya-Ruiz, 166 Ariz. at 167, 800 P.2d at 1275.
Gutierrez originally sought to introduce the testimony of two jurors. By the time of the hearing, however, Gutierrez only sought to offer the testimony of juror M. Therefore, we address this issue only in the context of juror M. --------
¶24 Gutierrez submitted an affidavit from the juror. The juror stated he was a trial juror, participated in the deliberations, and voted to convict Gutierrez. The affidavit further stated that twelve years had passed since the trial and the juror had a "vague recollection of the facts and there are a lot of particulars that I do not remember." He further stated in the affidavit that Gutierrez's counsel provided him a "brief list of facts" along with Cupis's confession that he was the shooter and Gutierrez had nothing to do with the shooting, along with the results of the DNA tests on the first hat. The juror claimed he "probably" would have voted not guilty had he heard about Cupis's admission at trial. He further claimed he would have voted not guilty if he had known Cupis's DNA was on the first hat and Gutierrez's was not.
¶25 The trial court denied Gutierrez's motion. The court noted the juror had formed his new opinions outside the "jury dynamic" and the deliberative process. The court also noted the juror formed his new opinion without hearing Cupis testify and had no basis upon which to evaluate Cupis's credibility.
¶26 The trial court did not abuse its discretion when it denied the motion to admit the juror's testimony under these circumstances. The juror admitted he had only a vague recollection of the evidence he heard twelve years earlier and there was much he did not remember. He claimed he would have found Gutierrez not guilty had he heard Cupis admit he was the shooter, yet he did not hear Cupis testify, had nothing upon which to judge Cupis's credibility, and did not hear any of the evidence the State would have offered to show Cupis confessed only because of coercion. We also note that the juror admitted he changed his vote from not guilty to guilty at least once during deliberations, which shows the importance of the "jury dynamic" and deliberative process as referenced by the trial court. Finally, the juror's affidavit did not address accomplice liability, the evidence that supported accomplice liability, or the existence of the second hat in the car and Gutierrez's DNA on the second hat. Consequently, we find no abuse of discretion.
VII. The Denial of the Motion to Preclude the DNA Evidence
¶27 Gutierrez argues the trial court erred when it denied his motion to preclude the DNA evidence on the second hat as a sanction for the State's failure to timely disclose the existence of that evidence. We review the decision of whether to exclude evidence as a sanction for untimely disclosure for abuse of discretion. State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6, 210 P.3d 1283, 1285 (App. 2009).
A. Background
¶28 Gutierrez was aware of the second hat before trial. It was, as noted in ¶ 13, supra, found and identified in pretrial disclosures. However, during the second day of the evidentiary hearing, a witness revealed that investigators had tested the second hat for DNA after Gutierrez's trial without the knowledge of the prosecutor. The testing occurred more than a year before the evidentiary hearing, but the State did not disclose the fact that the second hat was tested or the results until ten days before the hearing. The prosecutors stated they were unaware the hat had been had tested until approximately five weeks before the evidentiary hearing. Although the State complied with the court's ten-day order to disclose the information, the court continued the evidentiary hearing for three months to allow Gutierrez time to address the new DNA evidence. When the hearing continued, the State introduced the evidence that Gutierrez was a major contributor to the mix of DNA on the second hat.
¶29 During the continuance, Gutierrez filed a motion for sanctions and sought to preclude the admission of the DNA evidence from the second hat. The motion was denied. The court noted the disclosure provisions of Arizona Rule of Criminal Procedure 15.1 do not apply in post-conviction relief proceedings and Rule 32 does not otherwise provide for discovery in post-conviction relief proceedings. The court further noted that the sanction of preclusion was unnecessary because the court continued the matter for three months to allow Gutierrez time to retain an expert and address the DNA evidence, and Gutierrez did not ask for more time.
B. Discussion
¶30 Gutierrez argues preclusion was appropriate because the State had a duty to disclose the evidence pursuant to Rule 15.1. We disagree.
¶31 "Rule 32 [] does not provide a process for obtaining discovery in [post-conviction relief] proceedings" and "Rule 15 applies only to the trial stage, not to [post-conviction relief] proceedings." Canion v. Cole, 210 Ariz. 598, 599, ¶¶ 7, 9, 115 P.3d 1261, 1262 (2005). In fact, our supreme court recognized that even if the "portion of Rule 15 imposing a continuing requirement of disclosure anticipates that disclosure will occur before trial," Rule 15 does not impose an obligation during post relief procedures. Id. at 600, ¶ 9, 115 P.3d at 1263. Despite Gutierrez's arguments to the contrary, our supreme court made no distinction between the pre- and post-petition phases of post-conviction relief proceedings. And the court clearly stated that Rule 15 simply does not apply in post-conviction relief proceedings. Id. at 599, ¶ 9, 115 P.3d at 1262. Consequently, because Rule 32 does not provide a process for obtaining discovery in post-conviction relief proceedings, the State did not violate any disclosure obligation found in the rules of criminal procedure.
¶32 The State, however, has "an ethical and constitutional obligation to disclose clearly exculpatory material that comes to its attention after the sentencing has occurred." Id. at ¶ 8. But the DNA evidence from the second hat was, however, inculpatory, not exculpatory. Consequently, there was no ethical or constitutional obligation that was violated that would support a sanction against the State for not immediately disclosing the inculpatory evidence.
¶33 However, the trial court has "inherent authority to grant discovery requests in [post-conviction relief] proceedings upon a showing of good cause," and a defendant generally cannot show good cause until after the filing of a post-notice petition for post-conviction relief. Id. at 600, ¶ 10, 115 P.3d at 1263. The court's inherent authority does not impose a duty on the State to disclose evidence in post-conviction relief proceedings. Instead, the inherent authority allows the court to manage post-conviction relief discovery requests as the issue arises.
¶34 Here, Gutierrez did not actively seek to have the State disclose evidence prior to the court setting the deadline before the evidentiary hearing. After being advised that Gutierrez received the second hat DNA test results just ten days before the evidentiary hearing, the court considered his motion to preclude the use of those results as a sanction. The court exercised its discretion by continuing the hearing to give Gutierrez a fair opportunity to address the new evidence. See State v. Krone, 182 Ariz. 319, 322, 897 P.2d 621, 624 (1995) (noting that continuing the proceedings is discretionary and a less stringent sanction).
¶35 Although the court has the discretion to preclude evidence as a sanction, a trial court must always consider whether a less stringent sanction would suffice before it restricts the introduction of evidence as a sanction for the failure to disclose. State v. Meza, 203 Ariz. 50, 58, ¶ 37, 50 P.3d 407, 415 (App. 2002). Because the court granted Gutierrez a three-month continuance to allow him a fair opportunity to address the new DNA evidence, we do not find that the court abused its discretion by denying the motion to preclude the evidence.
VIII. Conclusion
¶36 Based on the foregoing, we have reviewed the petition, but find no basis to grant relief.