Opinion
No. 2 CA-CR 2015-0326-PR
11-19-2015
THE STATE OF ARIZONA, Respondent, v. JASON DEREK KRAUSE, Petitioner.
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney By Steven A. Young, Deputy County Attorney, Prescott Counsel for Respondent John Trebon, P.C., Flagstaff By John J. Trebon and Arizona Innocence Project, Flagstaff By Angelee L. Van Hon 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NOT FOR PUBLICATION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. 31.24.
Petition for Review from the Superior Court in Yavapai County
No. P1300CR940374
The Honorable Rick A. Williams, Judge
REVIEW GRANTED; RELIEF GRANTED
COUNSEL Sheila Sullivan Polk, Yavapai County Attorney
By Steven A. Young, Deputy County Attorney, Prescott
Counsel for Respondent
John Trebon, P.C., Flagstaff
By John J. Trebon
and Arizona Innocence Project, Flagstaff
By Angelee L. Van Hon
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly concurred. VÁSQUEZ, Presiding Judge:
The Hon. Virginia C. Kelly, 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 Jason Krause seeks review of the trial court's ruling denying, after an evidentiary hearing, his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., in which he argued he was entitled to relief based on recently disclosed evidence that forensic evidence presented at his trial was without scientific basis. We grant review and relief.
¶2 Krause was convicted of manslaughter in the 1994 shooting death of T. The trial court sentenced him to a 10.5-year prison term. This court affirmed his conviction and sentence on appeal. State v. Krause, No. 1 CA-CR 96-0671 (memorandum decision filed Oct. 21, 1997). In our decision, we described the facts underlying Krause's conviction as follows:
Four young people were returning to Prescott after an evening of four-wheeling in the back country. [T.], the driver, often purposefully caused the vehicle to backfire. As the jeep passed Krause's home two backfires sounded. After the second
backfire, [T.] was shot, lost control of the jeep and crashed it into a parked truck. He was taken to the hospital and pronounced brain-dead as the result of a gunshot wound to the head. An examination of the jeep indicated two .22 caliber bullet hits on the vehicle, one to the running board, the other to left rear tire.Federal Bureau of Investigation (FBI) Special Agent Ernest Peele testified at trial that, based on comparative bullet lead analysis (CBLA), the bullet that had killed T., as well as a lead fragment found in the Jeep's tire, was "analytically indistinguishable" from .22 caliber ammunition found in Krause's possession and the test results were "typical of . . . what we expect when we analyze bullets from the same box of cartridges."
Krause gave conflicting accounts about the shooting. He first stated that he had heard what sounded like gunshots, heard the crash and then called 911. Later, he revised his account to say that when he heard what he thought were gunshots, he fell to the ground and the rifle he was carrying accidentally discharged. Two days later, he again revised his story to say that his rifle may have discharged more than once. Investigators found a shell casing in a thick, brushy area of Krause's front yard much closer to the road than where he claimed to have fallen to the ground.
¶3 Krause sought post-conviction relief, which the trial court summarily denied in August 2000. He argued, inter alia, that trial counsel had been ineffective in failing to pursue a third-party culpability defense by presenting accident reconstruction evidence purportedly showing he could not have shot T., as well as evidence supporting a theory that T. had been shot by someone else. The state argued in response that counsel had chosen not to pursue such a defense in light of the strength of the CBLA evidence, instead opting to present a defense that the shooting had been accidental. Indeed, the state suggested it would have been foolhardy for Krause to have pursued a third-party culpability defense.
¶4 In 2012, Krause filed a petition for post-conviction relief raising claims of newly discovered evidence, "violation of due process," and actual innocence. His claims centered on the FBI's disavowal of CBLA in a 2008 letter, in which the director of the FBI laboratory stated that Peele's testimony in Krause's case "exceeds the limits of the science and cannot be supported by the FBI." He asserted that, had the CBLA evidence not been presented or had he been able to discredit it, he would have presented additional evidence, including that numerous witnesses had reported gunfire "associated with [T.'s] Jeep . . . that night," and accident-reconstruction evidence showing it was impossible for Krause to have fired the fatal shot. He further claimed that Peele had been aware at the time of trial that the CBLA was faulty and the state's failure to disclose that information constituted a violation of Brady v. Maryland, 373 U.S. 83 (1963).
¶5 The trial court denied relief after an evidentiary hearing. It concluded the 2008 FBI letter "constitutes newly discovered evidence" and that Krause had been diligent in presenting the evidence. The court determined, however, that the absence or discrediting of the CBLA evidence was not likely to change the verdict because, in part, Krause had "admitted that he killed [T.], but he argued that he did so accidentally." In addressing Krause's Brady claim, the court similarly determined the evidence would not have changed the verdict because, although Krause would have presented third-party culpability evidence had he been able to discredit the CBLA evidence, "other circumstantial evidence" made that defense "unrealistic." The court noted that no other gun had been recovered, the passengers testified to hearing gunfire before T. was killed, there was damage to the Jeep in two spots consistent with the impact of a .22 caliber bullet, and Krause had changed his story several times. The court also rejected Krause's claim of actual innocence. This petition for review followed.
¶6 On review, Krause repeats his claims. He first argues the trial court applied the wrong standard in addressing his Brady claim and his claim of newly discovered evidence by considering only whether there was sufficient evidence to support his conviction absent the CBLA evidence. He additionally argues the court erred in rejecting his claim of newly discovered evidence because it did not consider "additional evidence that would have been advanced absent CBLA." Finally, Krause asserts the court ignored that evidence in evaluating his claim of actual innocence. We will disturb the court's ruling only if the court clearly abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007).
¶7 Because we find it dispositive, we first address Krause's claim of newly discovered evidence. A defendant presents a colorable claim of newly discovered evidence if the following requirements are met:
(1) the evidence must appear on its face to have existed at the time of trial but be discovered after trial; (2) the [petition] 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.State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989); see also Ariz. R. Crim. P. 32.1(e); State v. Andersen, 177 Ariz. 381, 387, 868 P.2d 964, 970 (App. 1993) (all elements must be satisfied to establish claim of newly discovered evidence). Newly discovered impeachment evidence warrants relief only if the evidence "substantially undermines testimony which was of critical significance at trial such that the evidence probably would have changed the verdict or sentence." Ariz. R. Crim. P. 32.1(e); see also State v. Orantez, 183 Ariz. 218, 221, 902 P.2d 824, 827 (1995).
¶8 As we noted above, the trial court concluded that the information contained in the FBI letter constituted newly discovered evidence and that Krause had been diligent in bringing it to the court's attention. The state does not argue on review that those conclusions were incorrect. Accordingly, the issue before us is whether the new evidence was likely to have changed the verdict.
¶9 There is little question that, had the new information been known at the time of trial, the state would not have attempted to present the CBLA evidence. And we agree with Krause that, in evaluating newly discovered evidence, a trial court also may consider if or how that evidence would have affected the trial as a whole, including whether it would have influenced the defendant's trial strategy. As we noted in State v. Hess, 231 Ariz. 80, ¶ 11, 290 P.3d 473, 476 (App. 2012), "[n]othing in Rule 32.1(e) requires the court to artificially narrow the scope of its inquiry by ignoring evidence the state undoubtedly would offer at a new trial in response to the defendant's new evidence." Similarly, we see no reason to require a trial court to ignore that newly discovered evidence may have dramatically altered the presentation of evidence at trial by both parties had they been aware of it.
CBLA evidence has been held inadmissible under the test governing the admissibility of scientific evidence described in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), see Ragland v. Commonwealth, 191 S.W.3d 569, 580 (Ky. 2006), as well as under the test described in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), see Clemons v. State, 896 A.2d 1059, 1078 (Md. 2006).
¶10 Our reasoning finds support in the United States Supreme Court's jurisprudence addressing the evaluation of materiality under Brady. Newly discovered evidence warrants relief only if it "probably would have changed the verdict." Ariz. R. Crim. P. 32.1(e). Similarly, exculpatory evidence not timely disclosed by the state warrants relief only if that evidence is material, that is, if there is a "'reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.'" State v. Benson, 232 Ariz. 452, ¶ 24, 307 P.3d 19, 27 (2013), quoting Smith v. Cain, ___ U.S. ___, ___, 132 S. Ct. 627, 630 (2012). In addressing this standard, the Supreme Court observed that a reviewing court may evaluate Brady evidence in light of "any adverse effect that the prosecutor's failure to respond [fully to a request for exculpatory evidence] might have had on the preparation or presentation of the defendant's case." United States v. Bagley, 473 U.S. 667, 683 (1985). That is, "[t]he reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken." Id. Thus, where a defendant identifies an alternate trial strategy that counsel likely would have adopted had the new evidence been available at the time of trial, the trial court should evaluate whether there is a reasonable probability that strategy would have resulted in acquittal.
Trial counsel testified that he had opted not to pursue a third-party culpability defense due to the strength of the CBLA evidence linking Krause to the bullet that killed T. The state does not suggest this testimony was incredible. And as we noted above, the state argued in Krause's first post-conviction relief proceeding that counsel did not pursue a third-party culpability defense due to the strength of the CBLA evidence.
¶11 The state argues that Krause is "precluded" from presenting, and thus the trial court may not consider, evidence that counsel would have presented in light of the new evidence. The state reasons that because Krause pursued a claim of ineffective assistance of counsel arguing that counsel should have presented evidence in support of a third-party liability defense, Rule 32.2(a) bars consideration of that evidence now, or of any other issue presented in a previous proceeding. Thus, the state concludes, Krause "should be precluded from relief on any claims based on sufficiency of the evidence, third-party culpability, or accident reconstruction as each has been adjudicated on its merit." The state's argument misconstrues Rule 32.2(a). The rule precludes certain claims enumerated in Rule 32.1, not evidence or issues relevant to other, non-precluded claims such as the claim of newly discovered evidence we address here.
¶12 The trial court did not expressly mention the third-party culpability strategy in the portion of its decision discussing newly discovered evidence. But it evaluated the effect of the new strategy in addressing Krause's Brady claim and concluded the jury likely would have rejected that defense. Thus, to the extent the court erred by not considering the evidence in regards to the new evidence claim, it clearly would have reached the same result in any event. Cf. State v. Pena, 209 Ariz. 503, ¶ 15, 104 P.3d 873, 877 (App. 2005) (error harmless if "absent the error, the court would have reached the same result"). We disagree with the court, however, that the newly discovered fact that CBLA is not scientifically valid is not reasonably likely to result in a different verdict at a new trial.
¶13 In rejecting Krause's arguments, the trial court identified evidence supporting the jury's verdict, most notably that Krause admitted discharging his rifle, Jeep passengers reported hearing popping sounds before T. was killed, and there was bullet damage consistent with Krause's .22 caliber rifle to the Jeep's driver's side tire and rocker panel—the side facing Krause. Although this evidence is likely sufficient to support a guilty verdict, the court's analysis was incomplete because it did not address the weight the jury might have given the CBLA evidence and therefore did not evaluate fully how the absence of that evidence would have influenced the jury's verdict.
¶14 As the state acknowledged in Krause's first Rule 32 proceeding, the CBLA evidence was strong evidence linking Krause to the bullet that killed T. and to the bullet that struck the Jeep's tire. The record bears out the state's view. The state presented no evidence except the CBLA evidence that linked Krause to the lead fragments recovered from T. and from the Jeep's tire, or suggesting that the lead fragments were from bullets that had been fired from the same weapon. And, even assuming the jury concluded the damage to the Jeep's tire and rocker panel had been caused by .22 caliber bullets, law enforcement officers found only one shell casing near Krause's location at the time of the shooting.
In its response to Krause's petition below, the state suggested the CBLA evidence was of little import at trial. Given its argument in Krause's first post-conviction proceeding, it was at least arguably estopped from making this claim. State v. Towery, 186 Ariz. 168, 182, 920 P.2d 290, 304 (1996) (successful party precluded from asserting contrary position in subsequent proceeding involving same parties and same question). In any event, as we explain, the record does not support that conclusion.
¶15 Moreover, courts have recognized that jurors may give significant weight to scientific evidence. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993) ("'Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.'"), quoting Jack B. Weinstein, Rule 702 of the Federal Rules of Evidence Is Sound; It Should Not Be Amended, 138 F.R.D. 631, 632 (1991); DePaepe v. Gen. Motors Corp., 141 F.3d 715, 720 (7th Cir. 1998) ("District courts must be careful to keep experts within their proper scope, lest apparently scientific testimony carry more weight with the jury than it deserves."); Chapman v. State, 638 P.2d 1280, 1290 (Wyo. 1982) ("Jurors tend to give considerable weight to scientific evidence when presented by experts with impressive credentials."); see also Dawn McQuiston-Surrett & Michael J. Saks, Communicating Opinion Evidence in the Forensic Identification Sciences: Accuracy and Impact, 59 Hastings L.J. 1159, 1188 (2008) (recognizing that "most jurors begin with an exaggerated view of the nature and capabilities of forensic identification"). Indeed, in addressing a claim based on CBLA evidence, the Maryland Court of Appeals emphasized that "[w]e have frequently recognized the significance jurors afford to forensic evidence in assessing a defendant's guilt or innocence." Kulbicki v. State, 99 A.3d 730, 743 (Md. 2014), rev'd on other grounds by Maryland v. Kulbicki, ___ U.S. ___, 136 S. Ct. 2 (2015).
¶16 The importance of the CBLA evidence in Krause's trial is even more apparent when considered in light of evidence that was not presented at trial due to trial counsel's tactical decision to not pursue a third-party culpability defense. An accident reconstruction expert testified at the evidentiary hearing that, based on his analysis, "the muzzle of the weapon is going to have to be 10 to 27 feet above the surface of the roadway" to have fired the fatal shot and that it would have been impossible for Krause "to get that type of elevation in that area." And Krause offered with his petition another accident reconstruction report opining "that the fatal shot was fired from the back seat" of the Jeep. Numerous people reported that they had seen or heard gunfire as the Jeep passed them. Additionally, law enforcement officers discovered several small-caliber cartridges or shell casings in the Jeep, including an unfired .22 caliber round.
The expert acknowledged that his calculation depended on the assumption that T. had been facing forward when shot. One of the Jeep's passengers testified T. "was looking straight ahead at the road" just before he "slumped forward" and the Jeep crashed. --------
¶17 The trial court gave considerable weight to statements Krause had made following the shooting in which he purportedly admitted he had killed T. But Krause's so-called admissions were equivocal. His wife testified that he had stated, "I think I shot the boy," and, although he told a police officer that he "shot that kid," he also told the officer, "I didn't even know I hit, ya know, done anything," adding a little later, "I didn't know that I did it." And he testified at trial that he had assumed he had fired the fatal shot because he had been told "there were no—you know, no guns." A jury readily could conclude Krause's statements were based on his supposition that a bullet he had accidentally discharged had struck T. instead of on any firsthand knowledge that he had actually shot T.
¶18 For the foregoing reasons, we conclude the trial court erred in determining the newly discovered evidence that the CBLA presented by the state at trial was without scientific basis is not reasonably likely to result in a different verdict after a new trial. We thus need not address Krause's additional arguments that the court erred in rejecting his Brady claim or his claim of actual innocence. Nor need we separately address the arguments raised in the amici curiae briefs filed in this court. We grant review and relief, and we remand the case to the trial court for further proceedings consistent with this decision.