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State v. Pandeli

Supreme Court of Arizona

May 15, 2017

State of Arizona, Plaintiff/Petitioner,
v.
Darrel Peter Pandeli, Defendant/Respondent.

         On Review from the Superior Court in Maricopa County The Honorable Robert L. Gottsfield, Judge No. CR1993-008116

          Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor General, Lacy Stover Gard (argued), Chief Counsel, Capital Litigation Section, Jason Easterday, Assistant Attorney General, Phoenix, Attorneys for State of Arizona

          Kenneth S. Countryman, Kenneth S. Countryman, P.C., Tempe; and Julie S. Hall (argued), Oracle, Attorneys for Darrel Peter Pandeli

          Amy P. Knight, Kuykendall & Associates, Tucson; Amy M. Kalman, Maricopa County Public Defender's Office, Phoenix; David J. Euchner (argued), Pima County Public Defender's Office, Tucson; and Amy S. Armstrong, Tucson, Attorneys for Amici Curiae Arizona Attorneys for Criminal Justice and Arizona Capital Representation Project

          JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES BRUTINEL and TIMMER joined.

          OPINION

          BOLICK, JUSTICE

         BACKGROUND

         ¶1 Darrel Pandeli was sentenced to death in 1998 for the murder of Holly Iler. This Court affirmed the conviction and death sentence. State v. Pandeli (Pandeli I), 200 Ariz. 365, 382-83 ¶ 94, 26 P.3d 1136, 1153-54 (2001). However, the United States Supreme Court vacated the judgment and remanded the case for further consideration in light of Ring v. Arizona, 536 U.S. 584 (2002). Pandeli v. Arizona (Pandeli II), 536 U.S. 953 (2002) (mem.). This Court vacated the death sentence and remanded to the trial court for a new sentencing hearing. State v. Pandeli (Pandeli III), 204 Ariz. 569, 572 ¶ 11, 65 P.3d 950, 953 (2003). On remand, the jury found that Pandeli should be put to death. This Court affirmed. State v. Pandeli (Pandeli IV), 215 Ariz. 514, 533 ¶ 85, 161 P.3d 557, 576 (2007).

         ¶2 In July 2011, Pandeli's post-conviction relief ("PCR") attorney filed a petition alleging multiple trial court errors, prosecutorial abuses, and fifteen claims of ineffective assistance of counsel ("IAC"). In September 2012, the PCR court largely denied the petition but set an evidentiary hearing on the IAC claims. The PCR court subsequently granted relief on all those claims as well as an additional due process violation, setting aside Pandeli's death sentence, and ordering a new aggravation and penalty phase sentencing trial. The State sought review from this Court. We have jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-755 and 13-4031. For the reasons set forth below, we reverse.

         DISCUSSION

         ¶3 We examine a PCR court's findings of fact to determine if they are clearly erroneous. State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775 (1992). Arizona Rule of Criminal Procedure 32.8(d) requires a court to "make specific findings of fact, and . . . state expressly its conclusions of law relating to each issue presented." See State v. Tankersley, 211 Ariz. 323, 324, 121 P.3d 829, 830 (2005). Unfortunately, the PCR court made few specific findings and failed to connect them to its conclusions on many of the issues presented. The court failed to make findings for some claims at all. Most problematic, the PCR court did not explain how Pandeli suffered prejudice from any of the acts or omissions it deemed to constitute IAC or to violate due process. Cf. Strickland v. Washington, 466 U.S. 668, 687 (1984) (recognizing prejudice as an element for an IAC claim). As a result, our ordinary deference to the PCR court's factual findings is largely inapplicable here. Instead, we have reviewed the record and conclude that Pandeli did not establish IAC or prove his due process claim.

         A. IAC Claims

         ¶4 Whether Pandeli's lawyers "rendered ineffective assistance is a mixed question of fact and law." State v. Denz, 232 Ariz. 441, 444 ¶ 6, 306 P.3d 98, 101 (App. 2013). We review the court's legal conclusions and constitutional issues de novo. Id.; see also State v. Newell, 212 Ariz. 389, 397 ¶ 27, 132 P.3d 833, 841 (2006). However, we ultimately review a PCR court's ruling on a petition for post-conviction relief for an abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). An abuse of discretion occurs if the PCR court makes an error of law or fails to adequately investigate the facts necessary to support its decision. State v. Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006); State v. Douglas, 87 Ariz. 182, 187, 349 P.2d 622, 625 (1960).

         ¶5 The State contends the PCR court erred in granting relief on Pandeli's IAC claims because it did not properly apply the highly deferential standards for reviewing such claims under the two-pronged test set forth in Strickland, 466 U.S. at 687. "Under Strickland, we first determine whether counsel's representation 'fell below an objective standard of reasonableness.'" Hinton v. Alabama, 134 S.Ct. 1081, 1088 (2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). This inquiry 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. Id.

         ¶6 Next, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 1089 (quoting Strickland, 466 U.S. at 694). But "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding, " because then "[virtually every act or omission of counsel would meet that test." Strickland, 466 U.S. at 693. Although a defendant must satisfy both prongs of the Strickland test, this Court is not required to address both prongs "if the defendant makes an insufficient showing on one." Id. at 697.

         ¶7 Thus, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (citation and internal quotation marks omitted). A defendant does so by showing that his counsel's performance fell outside the acceptable "range of competence, " and did not meet "an objective standard of reasonableness." Id. at 687-88. In short, reviewing courts must be very cautious in deeming trial counsel's assistance ineffective when counsel's challenged acts or omissions might have a reasonable explanation.

         ¶8 The PCR court did not apply this deferential standard of review, instead repeatedly second-guessing counsel's strategy decisions. Simply disagreeing with strategy decisions cannot support a determination that representation was inadequate. Id. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."). We proceed to assess each of the PCR court's findings of inadequate assistance in turn.

         1. Failure to cross-examine Dr. Bayless

         ¶9 Many of the PCR court's findings pertain to the fact that Pandeli's counsel did not cross-examine the State's key witness, Dr. Brad Bayless, a psychologist, during the penalty phase. Pandeli argued five general types of mitigation: he was physically and sexually abused as a child, began abusing drugs and alcohol at an early age, suffered from a cognitive disorder, behaved well while in prison, and could maintain positive relationships. Pandeli IV, 215 Ariz. at 531-33 ¶¶ 70-83, 161 P.3d at 574-76. In rebuttal, the State called Dr. Bayless to testify about Pandeli's mental health and other characteristics. Defense counsel did not cross-examine Dr. Bayless. The PCR court observed,

Dr. Bayless is a state's witness who routinely testified for the state in death penalty cases. In most cases, Dr. Bayless testifies that a defendant is psychotic and that there's no saving him. Dr. Bayless frequently doesn't have any scientific basis for his opinion. He used projective tests that are subjective and should not be used in a death penalty case. His testing was not appropriate and misleading.

         In this vein, the PCR court engaged in second-guessing defense counsel's strategic decision to forgo cross-examination of Dr. Bayless and rebut his testimony with their own expert. Cf. Strickland, 466 U.S. at 690 ("[Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable."). Moreover, the court made sweeping generalizations unmoored to specific findings of IAC.

         ¶10 The PCR court further found, based on the testimony of attorney Michael Reeves, Pandelli's professional standards expert, that defense counsel "should have cross-examined Dr. Bayless or somehow dealt with the information and testimony he presented. [Defense counsel] did not counteract any information presented by Dr. Bayless."

         ¶11 Pandeli's lead counsel, Gary Shriver, acknowledged that the failure to cross-examine Dr. Bayless was a spur-of-the-moment decision resulting from "wrongheadedness."[1] Co-counsel Dawn Sinclair testified that they were not fully prepared to deal with Dr. Bayless because they did not know what questions to ask about his report. Thus, the court found that Pandeli's attorneys were unprepared to interview or cross-examine Dr. Bayless or challenge the unsupportable conclusions he made. The court further found that "both attorneys agreed that the decision [not to cross-examine Dr. Bayless] was not strategic and [was] a failure of counsel to adequately defend [Pandeli]."

         ¶12 Considering the entire record, however, we conclude that Pandeli failed to prove IAC, and the PCR court erred by finding otherwise. Although the decision not to interview Dr. Bayless was "made on the fly, " it was an informed and defensible one made on the basis of extensive investigation and preparation. At the PCR hearing, Shriver testified that he had "known Dr. Bayless since [he] started practicing, " and he believed that as an adversary witness, Dr. Bayless was "hard to control." He also believed that Dr. Bayless "was known to sandbag and bring out more . . . harmful stuff during a defense cross." Shriver also found that when Dr. Bayless would testify before a jury "there was a performance" and "[i]t wasn't simply providing testimony as an expert, " but rather Dr. Bayless was "wait[ing] [to] bring even more, bring the real guns out in cross." Therefore, Shriver believed "that simply cross-examining [Dr. Bayless] before a jury is not necessarily the key. It doesn't mean that you are going to successfully examine him at least in my opinion."

         ¶13 Shriver explained "what was on [his] mind" when he decided to forgo cross-examination, namely that he could prevent Dr. Bayless from further harming Pandeli's case on cross-examination, as he was known to do. Shriver believed that Dr. Bayless's direct examination was not nearly as harmful as the defense anticipated. Thus, Shriver was worried that Dr. Bayless would use cross-examination as an opportunity to "thrust and parry to get his points across." Finally, by declining cross-examination, Shriver would deprive the State of an opportunity for redirect.

         ¶14 The record fails to show defense counsel was unprepared to cross-examine Dr. Bayless. To prepare for the resentencing trial, Shriver compiled transcripts of Dr. Bayless's testimony from other cases, discussed with other defense attorneys how to deal with Dr. Bayless, and interviewed him several times over three days. Shriver testified that he and Sinclair prepared an outline and were prepared to cross-examine Dr. Bayless when trial started. He also believed that he had somewhat impeached Dr. Bayless's findings through the testimony of Pandeli's expert, Dr. Mark Cunningham. Therefore, Shriver and Sinclair, after a brief discussion, chose to forgo cross-examination to prevent Dr. Bayless from further damaging Pandeli's case. Based on their research and experience with Dr. Bayless, counsel reasonably concluded that a cross-examination would give the expert a chance to inflict greater damage than he had on direct. See State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975) ("The failure of defense counsel to cross-examine one witness and question others on certain points was also a tactical decision and is not evidence of incompetence.").

         ¶15 The PCR court erred by substituting its after-the-fact judgment for counsel's during trial. "Disagreements as to trial strategy or errors in trial will not support a claim of ineffective assistance of counsel as long as the challenged conduct could have some reasoned basis." State v. Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984). Counsel clearly had, at a minimum, "some reasoned basis, " State v. Nirschel, 155 Ariz. 206, 209, 745 P.2d 953, 956 (1987), for forgoing cross-examination of Dr. Bayless. Thus, the PCR court overlooked evidence that the decision not to cross-examine Dr. Bayless was the product of a reasoned (even if mistaken) strategic judgment. See Strickland, 466 U.S. at 690 ("strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable").

         ¶16 Moreover, counsel did not leave Dr. Bayless's testimony completely uncontested, but rather used their own defense experts to rebut significant portions of his testimony. Contra United States v. Cronic, 466 U.S. 648, 659 (1984) ("[I]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable."). Although defense counsel, in hindsight, may have "dropped the ball" by not calling Dr. Cunningham back to the stand to reinforce his earlier testimony that contradicted Dr. Bayless, that mistake did not constitute IAC given the fact that counsel did impeach much of Dr. Bayless's testimony through other witnesses.

         ¶17 For example, as Shriver testified, counsel laid the groundwork to impeach Dr. Bayless through Dr. Cunningham by:

[Setting] the table to show that a lot of these concepts that Bayless would testify in the State's case were not sound, under sound psychology.
Now, I didn't feel that I had completely done away with any harm from Bayless' testimony by asking Dr. Cunningham certain questions, but I felt we had at least provided a basis for the jury to understand that Bayless should not be given as much credibility as he would have liked or the State would have liked.

         Although counsel did not fully impeach Dr. Bayless's testimony through Dr. Cunningham, he strategically elicited information that put the jury on notice that Dr. Bayless's methods and testimony might not be accurate.

         ¶18 Defense counsel anticipated that Dr. Bayless would testify that Pandeli malingered during his psychological tests. Therefore, counsel attempted to preemptively combat that testimony by having Dr. Marc Walter testify that he believed Pandeli was "putting forward good effort" in the tests. Dr. Walter also testified that he disagreed with Dr. Bayless's diagnosis that Pandeli had a mild learning disability, stating that Pandeli had a "very serious learning disability" and did not think things through "because of the frontal lobe dysfunction."

         ¶19 Dr. Bayless's use of projective tests was called into question at the PCR hearing by several witnesses. Michael Reeves, Dr. Weinstein (a psychologist specializing in clinical and forensic neuropsychology), and Dr. Jones (a forensic psychologist) all criticized Dr. Bayless's use of projective tests because they do not have standardized scores. At trial, Dr. Cheryl Karp also testified that some of the tests are not appropriate to "generate . . . a diagnosis, " which served to impeach Dr. Bayless's findings.

         ¶20 Finally, Dr. Bayless's determination that Pandeli has antisocial personality disorder was called into question at trial. Counsel elicited testimony from Dr. Cunningham that Pandeli "[p]otentially . . . would meet the adult criteria for anti-social personality disorder, " but that diagnosis was "irrelevant" for sentencing determination because it did not inform "how [Pandeli] came to be damaged." In closing, counsel reiterated this point, telling the jury that "[t]he State and Dr. Bayless missed the point entirely. . . . That [Pandeli] has antisocial personality disorder doesn't rebut a single thing that the defense had put on. . . . [T]hat diagnosis tells you nothing with respect to this sentencing proceeding."

         ¶21 The decision to use other expert testimony to attempt to preemptively impeach parts of Dr. Bayless's testimony and then forgo cross-examination was a strategic decision that defendant has not demonstrated falls below the level expected of a reasonably competent defense attorney. Cf. State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984) (no IAC if counsel's decision had a reasoned basis rather than the result of "ineptitude, inexperience, or lack of preparation"). No finding was made that the decision lacked "some reasoned basis, " and the evidence would not support such a finding.

         2. Failure to obtain ...


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