State v. Macias

Citation249 Ariz. 335,469 P.3d 472
Decision Date25 June 2020
Docket NumberNo. 1 CA-CR 19-0408 PRPC,1 CA-CR 19-0408 PRPC
Parties STATE of Arizona, Respondent, v. Gabriel MACIAS, Petitioner.
CourtCourt of Appeals of Arizona

Yuma County Attorney's Office, Yuma, By Charles Platt, Counsel for Respondent

Perkins Coie LLP, Phoenix, By Jean-Jacques Cabou, Thomas D. Ryerson, and Matthew R. Koerner, Counsel for Petitioner

Presiding Judge Paul J. McMurdie delivered the opinion of the Court, in which Judge Jennifer B. Campbell and Vice Chief Judge Kent E. Cattani joined.

McMURDIE, Judge:

¶1 Petitioner Gabriel Macias seeks review from the superior court's dismissal of his petition for post-conviction relief under Arizona Rule of Criminal Procedure ("Rule") 32.1 We grant review but deny relief. We hold: (1) the superior court did not abuse its discretion by denying an evidentiary hearing on Macias’ claim of juror misconduct after interviews with jurors revealed that jurors prematurely deliberated; (2) appellate counsel did not render ineffective assistance by failing to anticipate future developments in the law; (3) the doctrine of spoliation does not relieve a defendant of the obligation to allege a colorable claim of ineffective assistance of counsel; and (4) appellate counsel did not render ineffective assistance by failing to raise a technical violation in the charging document or a vagueness challenge to the crime of providing harmful items to minors.


¶2 Macias taught fourth, fifth, and sixth grades and sex education classes from 2003 to 2006. In 2013, one of Macias’ former students (E.V.) reported to the police that when he was a student, Macias touched him inappropriately. During the subsequent investigation, the police located other former students who also claimed that Macias inappropriately touched them. Several of these victims claimed Macias showed them pornographic material at his home.

¶3 The police executed a search warrant on Macias’ home and seized adult pornographic videotapes; compact discs containing both adult and child pornography; adult magazines; and a college paper written by Macias that discussed, in a positive light, sex between older and younger men in ancient Greek society. The police also found a computer that contained: (1) nude videos of Macias and E.V. as a young teenager; (2) inappropriate chat messages between Macias and E.V.; and (3) two computer diary entries, both titled "Losing [E.V.]," detailing Macias’ emotional turmoil after E.V.’s parents prohibited contact between them. Following his arrest, Macias granted the police access to his phone, which contained videos of E.V. masturbating and a video of Macias masturbating while whispering, "I love you [E.V.]. This is only for you."

¶4 The jurors convicted Macias of various counts and acquitted him of one count of sexual exploitation of a minor. State v. Macias , 1 CA-CR 15-0505, 2017 WL 1458723, *1, ¶ 1, n.1 (Ariz. App. April 25, 2017) (mem. decision). The superior court sentenced Macias to life imprisonment without the possibility of release for thirty-five years for sexual conduct with a minor and to consecutive and concurrent presumptive prison terms totaling an additional 114.25 years for all remaining counts.

¶5 Macias appealed. This court vacated Macias’ convictions and sentences for sexual assault and sexual abuse based on an erroneous jury instruction relating to those two charges, Macias , 2017 WL 1458723, at *5, ¶ 21, and the conviction and sentence for one count of furnishing harmful items to a minor, id. at *12, ¶ 59. We affirmed the remaining convictions and sentences.

¶6 After the appeal, Macias filed a petition for post-conviction relief. The superior court denied relief, concluding that the petition failed to present a colorable claim. See State v. Amaral , 239 Ariz. 217, 220, ¶ 11, 368 P.3d 925, 928 (2016) ("The relevant inquiry for determining whether the petitioner is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the verdict or sentence. If the alleged facts would not have probably changed the verdict or sentence, then the claim is subject to summary dismissal.").

¶7 Macias filed a petition for review from the superior court's order. We have jurisdiction to consider Macias’ claims under Arizona Revised Statutes ("A.R.S.") section 13-4239(C) and Rule 32.16. We grant the petition for review, but for the reasons discussed below, deny relief.


¶8 We review the superior court's denial of post-conviction relief for an abuse of discretion, State v. Gutierrez , 229 Ariz. 573, 577, ¶ 19, 278 P.3d 1276, 1280 (2012), but review the interpretation of the Arizona Rules of Criminal Procedure de novo , State v. Mendoza , 248 Ariz. 6, 14–15, ¶ 12, 455 P.3d 705, 713-14 (App. 2019). To be eligible for post-conviction relief, a defendant must strictly comply with the post-conviction rules. Canion v. Cole , 210 Ariz. 598, 600, ¶ 11, 115 P.3d 1261, 1263 (2005) ; State v. Carriger, 143 Ariz. 142, 146, 692 P.2d 991, 995 (1984) ("Petitioners must strictly comply with Rule 32 or be denied relief.").

A. The Superior Court Did Not Abuse Its Discretion by Finding Macias Failed to Present a Colorable Claim for Relief Regarding Juror Misconduct.

¶9 Macias alleges he was deprived of an impartial jury because some jurors committed misconduct by deliberating prematurely. See Ariz. R. Crim. P. 32.1(a) (conviction obtained in violation of United States or Arizona Constitution); State v. Dann, 220 Ariz. 351, 371, ¶ 115, 207 P.3d 604, 624 (2009) ("[J]uror misconduct warrants a new trial [only] if the defense shows actual prejudice or if prejudice may be fairly presumed from the facts." (alteration in original) (quoting State v. Miller , 178 Ariz. 555, 558, 875 P.2d 788, 791 (1994) )); State v. Lehr , 227 Ariz. 140, 151, ¶ 49, 254 P.3d 379, 390 (2011). We assume, without deciding, that Macias could raise the juror misconduct claim in his first timely filed Rule 32 petition. But cf . State v. Kolmann , 239 Ariz. 157, 163, ¶ 25, 367 P.3d 61, 67 (2016) (holding that because the juror-misconduct claim, in that case, could have been raised in a post-trial motion under Rule 24, the defendant was precluded from raising it in the post-conviction petition).

¶10 Macias has failed to allege a colorable claim of juror misconduct. Generally, defendants have the right to "an impartial jury." U.S. Const. amend. VI ; Ariz. Const. art. 2, § 24. "[E]ven a single partial juror violates a defendant's constitutional right to a fair trial." United States v. Angulo , 4 F.3d 843, 848 (9th Cir. 1993).

¶11 It has long been the established practice that jurors in a criminal case are not to discuss trial evidence amongst themselves until the conclusion of the evidence. See, e.g. , State v. Brady , 66 Ariz. 365, 372, 189 P.2d 198 (1948) (admonishing jury not to discuss the matter with anyone or amongst themselves "until the case is finally submitted to you"); State v. Rojas , 177 Ariz. 454, 457–58, 868 P.2d 1037, 1040-41 (App. 1993) (fairness requires that jurors not form fixed opinions on the merits until they retire to commence deliberations and the superior court should instruct the jurors accordingly); see also United States v. Resko , 3 F.3d 684, 688–89 (3d Cir. 1993) (discussing that it is a well-established practice in federal and state courts to admonish jurors at the outset that they should not discuss the case before the conclusion of the trial).

¶12 The prohibition against premature deliberations in criminal proceedings helps to ensure that a defendant's due-process rights are protected against particular human characteristics: (1) when the jury deliberates before the defendant has had a chance to present his case, the prosecution has an "unfair influence" on the jurors’ initial impressions; (2) once a juror establishes a particular view on an issue, that juror may have a "stake" in that viewpoint and give undue weight to evidence that supports rather than undercuts it; (3) individual conversations thwart the goal of a collective deliberative process by the jurors as a group; and (4) when premature deliberations occur before the jurors are instructed on the reasonable-doubt standard, jurors may reach a result based on an unconstitutional standard of proof. United States v. Bertoli , 40 F.3d 1384, 1393 (3d Cir. 1994).

¶13 However, courts considering premature deliberations distinguish between improper intra -jury communications and extra -jury communications, finding the latter far more likely to undermine due process because extraneous information provided to jurors or influences imposed on them "completely evade[ ] the safeguards of the judicial process." Resko , 3 F.3d at 690. When premature intra-jury communications occur, although the proper process for jury decision-making may have been violated, "there is no reason to doubt that the jury based its ultimate decision only on evidence formally presented at trial." Id.

¶14 Two federal cases addressing nearly identical facts demonstrate how difficult it is to obtain a reversal when the claim is raised after a verdict is rendered. In United States v. Gianakos , during the government's presentation of evidence, one juror mouthed to another, "he's guilty." 415 F.3d 912, 921 (8th Cir. 2005). Given the presumption that jurors impartially apply the law to the evidence and given that Gianakos offered "no allegations of external influence on the jury" rebutting the presumption, the court of appeals affirmed Gianakos’ conviction. Id . at 921-22. The Eighth Circuit likewise did not disturb the conviction in United States v. Caldwell , where during the trial, one juror said, "I've heard all of this I need to hear," and another said, "this is just a bunch of crap." 83 F.3d 954, 956 (8th Cir. 1996). Caldwell offered no reason to doubt that the jury came to its verdict based on anything but the trial evidence. Id .

¶15 In this case, Macias did not offer evidence of any extra-jury...

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