Review from the Superior Court in Maricopa County The
Honorable Robert L. Gottsfield, Judge No. CR1993-008116
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
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.
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).
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
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.
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).
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
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.
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
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.
Failure to cross-examine Dr. Bayless
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
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.
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.
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.
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." 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
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."
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
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
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
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.
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.
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.
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."
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
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
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.
Failure to obtain ...