State v. Swoopes

• Citation: 166 P.3d 945
• Decision Date: 19 September 2007
• Docket Number: No. 2 CA-CR 2006-0174-PR.,2 CA-CR 2006-0174-PR.
• Parties: The STATE of Arizona, Petitioner/Cross-Respondent, v. Samuel Wayne SWOOPES, Respondent/Cross-Petitioner.
• Court: Court of Appeals of Arizona

166 P.3d 945

The STATE of Arizona, Petitioner/Cross-Respondent, v. Samuel Wayne SWOOPES, Respondent/Cross-Petitioner.

No. 2 CA-CR 2006-0174-PR.

Court of Appeals of Arizona, Division 2, Department A.

September 19, 2007.

Barbara LaWall, Pima County Attorney By Taren M. Ellis and Jacob R. Lines, Tucson, Attorneys for Petitioner/Cross-Respondent.

Isabel G. Garcia, Pima County Legal Defender By Joy Athena, Tucson, Attorneys for Respondent/Cross-Petitioner.

OPINION

PELANDER, Chief Judge.

¶ 1 Based on a home invasion in 1984, respondent/cross-petitioner Samuel Wayne Swoopes was convicted after a jury trial of three counts each of armed robbery and kidnapping and one count each of first-degree burglary, sexual assault, and aggravated robbery. This court affirmed the convictions and sentences on appeal, State v. Swoopes, 155 Ariz. 432, 747 P.2d 593 (App.1987) (Swoopes I), and our supreme court denied review. State v. Swoopes, Ariz. Sup.Ct. No. CR-87-0299-PR (order filed Jan. 12, 1988). Swoopes first sought post-conviction relief in 1990, which both the trial court and this court denied. State v. Swoopes, No. 2 CA-CR 90-0715-PR (order filed Feb. 21, 1991). Thereafter, Swoopes sought relief in federal district court, filing a petition for writ of habeas corpus. Ultimately, in March 2003, the district court stayed that proceeding so Swoopes could "bring[] his unexhausted claims to the state courts."¹ Swoopes then commenced this, his second post-conviction proceeding, pursuant to Rule 32, Ariz. R.Crim. P., 17 A.R.S ¶ 2 Therein, Swoopes raised claims of, inter alia, ineffective assistance of counsel (IAC), newly discovered evidence, and violation of his right to be present at all critical stages of trial court proceedings. More specifically, he claimed that the judge who conducted the trial (Judge Thomas Meehan) had responded improperly and inaccurately to a question from the jury during deliberations; that Swoopes did not learn about the response until it was discovered by his counsel during the federal habeas proceedings; that the error was exacerbated by the prosecutor's closing argument; that Swoopes was thereby deprived of a fair trial; and that both trial and appellate counsel had been ineffective in, respectively, not objecting to Judge Meehan's response or otherwise protecting Swoopes's rights and not raising this claim as an issue on appeal.

¶ 3 After argument, the trial court granted relief and ordered a new trial. The state seeks review of that order, arguing Swoopes is precluded from obtaining relief on any of his claims. In his response and cross-petition for review, Swoopes urges us to deny review or relief on the state's petition and alternatively challenges the trial court's denial of relief on the remaining claims he raised in this Rule 32 proceeding.

¶ 4 We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). "We review a trial court's factual findings for clear error." State v. Herrera, 183 Ariz. 642, 648, 905 P.2d 1377, 1383 (App.1995). But a trial court's erroneous ruling on a question of law, such as whether a post-conviction claim is or is not precluded, constitutes an abuse of discretion. See State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150 (2006); State v. Jensen, 193 Ariz. 105, ¶¶ 9-13, 970 P.2d 937, 938-39 (App. 1998). Thus, although we generally defer to a trial court's factual findings unless clearly erroneous, we are not bound by a court's legal ruling on the issue of preclusion in post-conviction proceedings. See A.R.S. § 13-4232(C) ("[A]ny court on review of the record may determine and hold that an issue is precluded regardless of the state's failure to raise the preclusion issue."); Ariz. R.Crim. P. 32.2(c) (same).

¶ 5 Finding Swoopes's IAC and related claims precluded, we conclude that the trial court erred as a matter of law in ruling otherwise and in granting him post-conviction relief. We further conclude that the court did not abuse its discretion by denying relief on Swoopes's remaining claims.

I.

¶ 6 Identification was the primary issue in this case. Swoopes, along with two other men, entered the home of Linda and Randy D., a married couple, robbing them and their guest Mark H. at gunpoint. One of the other men sexually assaulted Linda. The victims eventually identified Swoopes as the gunman. But shortly after the incident they were unable to clearly describe Swoopes or identify him in a photographic lineup. None of the victims described Swoopes as having any significant facial scarring; however, it is undisputed that Swoopes has a large blemish or discoloration above his right eye.

¶ 7 Well over a year after the incident, Randy and Mark learned there had been a similar home invasion in the neighborhood the same night and the suspect was being tried on various charges relating to that incident. They attended that trial, observed Swoopes, and immediately recognized him as the gunman in the crimes against them. Thereafter, Linda identified Swoopes in a live lineup, telling police she was looking for a scar that was an identifying feature of his face. All three victims identified Swoopes at trial in this case.

¶ 8 Michael Mussman, the attorney who represented Swoopes on the charges that arose out of the other home invasion, testified at trial in this case about having seen Randy and Mark at the prior trial in the other case and about having attended the live, June 1985 lineup during which Linda had identified Swoopes. Mussman made similar statements in his November 2002 affidavit, which was submitted in the federal habeas corpus proceeding and filed below in support of Swoopes's second post-conviction petition in this matter. Mussman stated at trial and in his affidavit that Linda had told Detective Skuta she was looking for a scar. In his affidavit he also noted she had not previously mentioned a scar. Swoopes also submitted in both this post-conviction proceeding and the prior federal court proceeding an affidavit of investigator Gene Reedy of the Pima County Legal Defender's Office, who also had attended the 1985 live lineup and described what he considered "very unusual" circumstances surrounding that. Swoopes unsuccessfully challenged the identification process as unduly suggestive before trial, during trial, and on appeal. See Swoopes I, 155 Ariz. at 434-35, 747 P.2d at 595-96.

¶ 9 During its deliberations, the jury sent a written question to the trial judge, Judge Meehan, asking to see "any statement made by Linda of a blemish before the physical lineup." The judge responded in writing that "[t]he statement is not admissible" and directed the jurors to "[r]ely on [their] collective memories." There was no record concerning the question, other than the written question itself and the response, or of the judge's having consulted counsel about the question and the response the court intended to give. The trial judge and the prosecutor who tried the case are now deceased, and as discussed below, Swoopes's trial counsel has no recollection of the event.

II.

¶ 10 Swoopes contended below in this second Rule 32 proceeding that the trial judge's response, which he claims was an improper, ex parte communication with the jury, violated his due process right to a fair trial, infringed his right to be present at all critical stages of the proceedings, and resulted in fundamental error. Swoopes submitted a statement by one of the jurors, Winsome M., who apparently had been involved in sending the question to the judge, about the importance of the question and answer to the jury's verdicts. Swoopes contended the error was compounded by the prosecutor's false suggestion during closing argument that the victims had relied on the scar or blemish to identify Swoopes from the beginning.

¶ 11 Swoopes acknowledged in his affidavit supporting his second petition for post-conviction relief he had known "some time before . . . fil[ing] a pro se, supplemental opening brief in the direct appeal" that the jury had asked during deliberations whether victim Linda D. had ever mentioned before the physical lineup having seen a scar or blemish on the gunman's face.² He claimed that he also "was told . . . the judge had responded . . . in the neutral, without giving [the jurors] any more information or instruction," and that he did not learn about the judge's actual response or personally see the jury's note and the response until sometime in 2002, during the habeas proceedings in federal court.

¶ 12 Swoopes maintained, inter alia, he was entitled to post-conviction relief based on newly discovered evidence, pursuant to Rule 32.1(e). He also contended both his trial and appellate counsel had been ineffective in not raising the claims relating to Judge Meehan's handling of the jury note, suggesting the error caused by the purported improper ex parte communication by Judge Meehan with the jury was fundamental and of "sufficient constitutional magnitude" that it was not waived by his failure to raise it until this proceeding. Ariz. R.Crim. P. 32.2 cmt. Swoopes also made a claim of actual innocence, seeking relief pursuant to Rule 32.1(h).

¶ 13 Swoopes's trial counsel, Michael Addis, stated in his affidavit, submitted in support of both the Rule 32 petition below and the prior federal habeas proceeding, that he did not recall the note that had been submitted by the jury during its deliberations. He stated he "was shown a copy of that note in 2002" and did not remember having seen Judge Meehan's response at trial but if he had, he would have objected because the response [was] an improper and inaccurate comment on the evidence; as written, the response would have given the jury the false belief that Linda [D.] had made a statement to police—at some time prior to her identification of Mr. Swoopes in the live lineup—in which she mentioned the existence of a scar...