Opinion
No. 2 CA-CR 2018-0286-PR
01-30-2019
THE STATE OF ARIZONA, Respondent, v. LYNDALL DWAIN THOMPSON, Petitioner.
Lyndall Thompson, Tucson In Propria Persona
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NOT FOR PUBLICATION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 Pima County
No. CR20072584001
The Honorable Howard Fell, Judge Pro Tempore
REVIEW GRANTED; RELIEF DENIED
Lyndall Thompson, Tucson
In Propria Persona
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Lyndall Thompson seeks review of the trial court's order summarily dismissing the petition he filed pursuant to Rule 32, Ariz. R. Crim. P., in this untimely and successive post-conviction proceeding. We will not disturb that order unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Thompson has not shown such abuse here.
¶2 After a jury trial, Thompson was found guilty of second-degree murder and sentenced to a sixteen-year prison term. We affirmed his conviction and sentence on appeal. State v. Thompson, No. 2 CA-CR 2008-0236 (Ariz. App. Sept. 24, 2009) (mem. decision). He has sought and been denied post-conviction relief on two previous occasions, and this court has denied relief on review. State v. Thompson, No. 2 CA-CR 2012-0029-PR (Ariz. App. May 30, 2012) (mem. decision); State v. Thompson, No. 2 CA-CR 2010-0274-PR (Ariz. App. Feb. 8, 2011) (mem. decision).
¶3 In August 2018, Thompson filed a petition for post-conviction relief asserting he had recently discovered evidence showing that audio recordings of his statements to police presented at trial and given to the jury during deliberations had been altered to remove exculpatory statements. He further asserted the three compact discs containing those recordings had been replaced with four new discs. His claims were based on four discs he had received from his attorney that apparently were copied from three discs in the trial exhibits. The trial court summarily denied relief, noting that the discs in the trial record were consistent with the "originally transcribed audio," that one of the four discs was duplicative of the discs in the trial record, and that the copied discs provided by Thompson were missing some audio contained on the original discs. This petition for review followed.
¶4 On review, Thompson generally restates his argument, asserts he is entitled to an evidentiary hearing, and argues the trial court erred by making factual findings without holding a hearing. To be entitled to an evidentiary hearing, Thompson must have "alleged facts which, if true, would probably have changed" the outcome of his case. State v. Amaral, 239 Ariz. 217, ¶¶ 10-11 (2016) (emphasis omitted). To raise a colorable claim of newly discovered evidence pursuant to Rule 32.1(e), he must demonstrate that: (1) the evidence is, in fact, newly discovered; (2) he exercised due diligence in discovering and presenting the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issue involved; and (5) the evidence probably would change the verdict or sentence. See Ariz. R. Crim. P. 32.1(e); State v. Serna, 167 Ariz. 373, 374 (1991). And, "[e]vidence is not newly discovered unless it was unknown to the trial court, the defendant, or counsel at the time of trial and neither the defendant nor counsel could have known about its existence by the exercise of due diligence." State v. Saenz, 197 Ariz. 487, ¶ 13 (App. 2000). Additionally, to comply with Rule 32.2(b) in raising this untimely claim, Thompson was required to "explain the reasons for not raising the claim in a previous notice or petition."
¶5 Thompson has not raised a colorable claim of newly discovered evidence. Had the recordings been improperly altered before trial, Thompson would have known that when they were played for the jury. See Saenz, 197 Ariz. 487, ¶ 13. He has made no effort to show he has been diligent in raising and attempting to prove the alleged discrepancy. Id. Moreover, the fact that his attorney sent four discs instead of three does not support the conclusion the original discs have been removed from the trial record. As the trial court noted and Thompson acknowledged, one of those discs was duplicative. Finally, Thompson has not explained the nearly nine-year gap between this proceeding and our mandate on appeal, or even the five-year gap between this proceeding and the denial of his previous attempt to obtain post-conviction relief. See Ariz. R. Crim. P. 32.2(b). The court did not err in summarily dismissing Thompson's petition.
In Thompson's previous Rule 32 proceeding, the state explained the recordings had been redacted to remove statements that Thompson had previously held undocumented immigrants at gunpoint on his property. Thompson's argument in this proceeding refers to purported statements he had made about the whereabouts of several guns that he asserts would have supported his self-defense claim.
The heart of Thompson's contention that the original three discs were replaced with four new discs seems to be that the four discs he received from his attorney look physically different than the discs in the record. This is unsurprising, given that they are copies. --------
¶6 We grant review but deny relief.