State v. Martinez

• Docket Number: 2 CA-CR 2023-0174-PR
• Decision Date: 22 April 2024
• Parties: The State of Arizona, Respondent, v. John Joseph Martinez, Petitioner.
• Court: Arizona Court of Appeals

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The State of Arizona, Respondent,
v.
John Joseph Martinez, Petitioner.

No. 2 CA-CR 2023-0174-PR

Court of Appeals of Arizona, Second Division

April 22, 2024

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 NOT FOR PUBLICATION See Ariz.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 Pinal County No. S1100CR201503988 The Honorable Kevin D. White, Judge

Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent

Grand Canyon Law Group, Mesa By Angela C. Poliquin Counsel for Petitioner

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Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.

MEMORANDUM DECISION

EPPICH, Presiding Judge:

¶1 Petitioner John Martinez seeks review of the trial court's rulings dismissing his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb those rulings unless the court abused its discretion. See State v. Martinez, 226 Ariz. 464, ¶ 6 (App. 2011). Martinez has not met his burden of establishing such abuse here.

¶2 After a jury trial, Martinez was convicted of kidnapping, aggravated assault, influencing a witness, and two counts of threatening or intimidating a witness. The trial court sentenced him to concurrent and consecutive, enhanced prison terms totaling twenty-six years. This court affirmed his convictions and sentences on appeal. State v. Martinez, No. 2 CA-CR 2017-0120 (Ariz. App. Feb. 21, 2019) (mem. decision).

¶3 Thereafter, Martinez initiated a proceeding for post-conviction relief. In his petition, Martinez raised several claims of ineffective assistance of trial counsel, including that he had failed to inform Martinez of a favorable plea offer, that he had fallen asleep during trial, that he had failed to call a gang expert, and that he had failed to object to "repeated acts" of prosecutorial misconduct. Martinez argued that the cumulative impact of these errors resulted in a "fundamentally unfair" trial. As a standalone claim, he asserted that the prosecutor had committed misconduct by "presenting improper bolstering hearsay and other improper evidence." Martinez also raised a claim under Rule 32.1(g), arguing that State v. Hood, 251 Ariz. 57 (App. 2021), constituted a significant change in the law that applied to his case. According to Martinez, Hood established that "reversible error and unfair prejudice" occurs when officers testify as both experts and fact witnesses, as occurred here, confusing the jury as to their "dual capacity role."

¶4 After the state filed its response, Martinez obtained new counsel. In his reply, Martinez asserted a new claim of ineffective assistance of appellate counsel for failing to challenge the purported prosecutorial misconduct. Because his first Rule 32 counsel had also been appellate

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counsel, Martinez reasoned that she could not argue her own ineffectiveness and asked the trial court to allow supplemental briefing on the matter. The court granted that request. In his supplemental reply, Martinez argued that his "prosecutorial error claims are also couched under new law-State v. Hood."

¶5 The trial court issued a ruling in December 2022. First, the court concluded that Hood "did not establish a change in the law that would support granting a new trial in this case." The court explained that Hood "merely noted that some courts have expressed concerns when a case agent testifies at trial both as an expert and a fact witness" but "did not, by any means, categorically prohibit dual-capacity witness testimony." The court rejected Martinez's claim of prosecutorial misconduct, explaining, in part, that it was precluded under Rule 32.2(a)(3). The court also rejected Martinez's claims of ineffective assistance of trial and appellate counsel based on the failure to challenge the purported misconduct.

¶6 Next, the trial court rejected Martinez's claims of ineffective assistance for trial counsel's failure to advise Martinez of a plea offer and to call a gang expert. As to the latter claim, the court observed that Martinez had failed to "identify what expert [counsel] should have called" or "what an expert could have testified to that would have made any difference in the outcome of the trial." In addition, the court noted that Martinez had sought...