State v. Davis
| Docket Number | 2 CA-CR 2023-0096-PR |
| Decision Date | 01 August 2023 |
| Parties | The State of Arizona, Respondent, v. Jacky Lee Davis, Petitioner. |
| Court | Arizona Court of Appeals |
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20192136001 The Honorable James E. Marner, Judge
REVIEW GRANTED; RELIEF DENIED
Apfel Law Group, Phoenix By Seth Apfel Counsel for Petitioner
Judge O'Neil authored the decision of the Court, in which Vice Chief Judge Staring and Judge Sklar concurred.
¶1 Jacky Davis seeks review of the trial court's ruling summarily dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App 2011). Davis has failed to establish such abuse here.[1]
¶2 After a jury trial, Davis was convicted of aggravated assault. The trial court sentenced him to a presumptive prison term of 11.25 years. This court affirmed Davis's conviction and sentence on appeal. State v. Davis No. 2 CA-CR 2021-0040 (Ariz. App. Apr. 21, 2022) (mem. decision).
¶3 Davis initiated a proceeding for post-conviction relief, and the trial court appointed counsel. In his Rule 32 petition, Davis asserted several claims of ineffective assistance of trial and appellate counsel. He maintained both trial and appellate counsel had failed to argue that Davis "was treated differently than other witnesses" at trial because he "was seated on the stand when the jury entered the courtroom" and "was not sworn [in] by standing in front of the jurors." Davis additionally asserted that trial counsel had failed to request an instruction pursuant to State v. Willits, 96 Ariz. 184 (1964), had failed to request a justification instruction, and had failed to adequately cross-examine and impeach the victim and two other witnesses.
¶4 In May 2023, the trial court summarily dismissed Davis's petition. It concluded that neither trial nor appellate counsel had rendered deficient performance by not raising the issue with Davis's "differential treatment" of being and remaining seated on the witness stand. In part, the court explained that these "concerted efforts were taken to ensure that the jury did not see" Davis's shackles. As to trial counsel's failure to request a Willits instruction, the court determined the evidence did not support such an instruction and Davis had suffered no prejudice. Similarly, the court found no ineffective assistance by trial counsel's failure to request a justification instruction because it was not supported by the record. Finally, the court determined that trial counsel was not ineffective in cross-examining and impeaching the victim and other witnesses. Instead, the court observed that "trial counsel's cross-examination techniques were effective and likely played a significant role in the jury's inability to reach a unanimous verdict" as to kidnapping, "the most serious charge alleged in the indictment." This petition for review followed.
¶5 On review, Davis reasserts each of his claims of ineffective assistance of trial and appellate counsel. To prevail on a claim of ineffective assistance of counsel, "a defendant must show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant." State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The first prong "focuses on the 'practice and expectations of the legal community,' and asks, in light of all the circumstances, whether counsel's performance was reasonable under prevailing professional norms." State v. Pandeli, 242 Ariz. 175, ¶ 5 (2017) (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)). Under the second prong, "the defendant must 'show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Miller, 251 Ariz. 99, ¶ 17 (2021) (quoting Strickland, 466 U.S. at 694). "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Bennett, 213 Ariz. 562, ¶ 21.
¶6 First, Davis contends that both trial and appellate counsel were ineffective in failing to raise the issue of his "differential treatment" as a witness. As he did below, Davis relies on Deck v. Missouri, 544 U.S. 622 (2005), Holbrook v. Flynn, 475 U.S. 560 (1986), and Estelle v. Williams, 425 U.S. 501 (1976). He contends the trial court "misapprehended" his argument regarding those cases because he cited them only "for illustrative purposes," not as controlling the facts of this case.
¶7 In Estelle, the Supreme Court determined that requiring a defendant to wear "identifiable prison clothing at his trial by a jury" violates his constitutional rights. 425 U.S. at 502, 505-06, 513. The Court explained that such a practice threatens "the fairness of the fact-finding process" and "furthers no essential state policy." Id. at 503-05. Next, in Holbrook, the Court concluded that a defendant was not denied "his constitutional right to a fair trial when, at his trial with five codefendants, the customary courtroom security force was supplemented by four uniformed state troopers sitting in the first row of the spectator's section." 475 U.S. at 562, 568-69. The Court explained that the troopers' presence was not "the sort of inherently prejudicial practice that . . . should be permitted only where justified by an essential state interest." Id. at 568-69. Most recently, in Deck, the Court held that "the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is 'justified by an essential state interest'-such as the interest in courtroom security-specific to the defendant on trial." 544 U.S. at 624 (quoting Holbrook, 475 U.S. at 568-69).
¶8 Davis contends these cases illustrate that "visibly differential treatment of a defendant compared to others that might impact the presumption of innocence cannot be tolerated absent substantial need." But the focus of these cases is not the "differential treatment" of defendants-it is whether a "particular practice" infringes on a defendant's right to a fair trial. Estelle, 425 U.S. at 504; see Deck, 544 U.S. at 627; Holbrook, 475 U.S. at 562, 568-69. Indeed, a discussion of "differential treatment" is not found in any of the cases. Even assuming Davis's proposition were correct, however, we disagree with his application of it to this case.
¶9 On the first day of Davis's testimony, he was wearing shackles. Consistent with Deck, the trial court apparently gave Davis two options to keep the jury from identifying the shackles, and Davis choose to be seated at the stand when the jury entered. 544 U.S. at 626. Notably, the court instructed the jurors to sit down as soon as they entered the courtroom so Davis was not "the only guy . . . not standing." And before being sworn in, defense counsel informed Davis that he could "remain seated." On the second day of his testimony, Davis was able to walk to the stand in front of the jury because he was wearing a leg brace rather than shackles. Based on the record before us, Davis was not overtly treated different from other witnesses without any reason. It follows that his trial and appellate counsel did not provide ineffective assistance by not raising the issue.
¶10 Davis additionally argues that the trial court erred by considering "facts not in the record or before it," further "illustrating the need for an evidentiary hearing." Specifically, he complains of the court's consideration of "the setup of the courtroom" and "unrecorded trial court conclusions." But the same judge that ruled on Davis's petition for post-conviction relief also presided over his trial and sentencing. Davis has cited no authority-and we are aware of none-that the judge was not within his discretion in using details he recalled from the trial in ruling on the petition. See Ariz. R. Crim. P. 32.11(a) ().
¶11 Moreover, Davis has failed to establish prejudice. He has offered nothing but speculation that the jurors were "impacted" by his position on the witness stand. See State v. Rosario, 195 Ariz. 264, ¶ 23 (App. 1999) (). We therefore cannot say the court erred in determining Davis had failed to establish a colorable claim. See Martinez, 226 Ariz. 464, ¶ 6.
¶12 Davis next repeats his claims that trial counsel was ineffective in failing to request a Willits instruction and a justification instruction. But he largely repeats the arguments made in his Rule 32 petition below and fails to offer any meaningful argument as to how the trial court erred in rejecting these claims.[2] We could therefore deem the arguments waived. See State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) ().
¶13 Even assuming the arguments were not waived, however, Davis has failed to establish that the trial court erred by summarily rejecting them. See Martinez, 226 Ariz 464, ¶ 6. As the court noted, neither a Willits instruction nor a justification instruction was supported by the record. See State v. Broughton, 156 Ariz. 394, 399 (1988) (...
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