State v. Baker ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
ANASTASIA BAKER, Petitioner.
No. 1 CA-CR 15-0166 PRPC
FILED 4-27-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2010-165153-001
The Honorable Cari A. Harrison, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Respondent
Anastasia Baker, Goodyear
Petitioner
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge James P. Beene joined.
STATE v. BAKER
Decision of the Court
D O W N I E, Judge:
¶1 Anastasia Baker petitions for review from the summary
dismissal of her first petition for post-conviction relief. For the following
reasons, we grant review but deny relief.
¶2 A jury found Baker guilty of second degree murder. She was
sentenced to 16 years’ imprisonment. This Court affirmed Baker’s
conviction and sentence on direct appeal.
¶3 Baker presents a lengthy list of claims of ineffective assistance
of trial and appellate counsel. To state a colorable claim of ineffective
assistance of counsel, a defendant must demonstrate that counsel’s
performance fell below objectively reasonable standards and that the
deficient performance prejudiced the defendant. Strickland v. Washington,
466 U.S. 668, 687–88 (1984). To show prejudice, a defendant must establish
a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
¶4 Baker argues her trial lawyer was ineffective by failing to
interview various witnesses. She further contends counsel should have
retained a mental health expert to explain why she had no memory of the
incident, as well as an expert to testify about an injury Baker sustained
during the incident. We deny relief because Baker does not provide an
affidavit or other documentation explaining what additional information
or testimony such individuals could have offered or otherwise demonstrate
that the additional testimony or information she now urges would have
benefitted her defense. See State v. Borbon, 146 Ariz. 392, 399 (1985).
¶5 Baker next contends her trial lawyer should have challenged
the grand jury proceedings because the State did not present evidence that
the victim stabbed Baker and that the victim had a high blood alcohol
concentration. We deny relief because Baker offers no evidence of what
was or was not presented during the grand jury proceedings; she merely
makes unsupported assertions. She therefore has failed to present a
colorable claim for relief.
¶6 Baker next argues trial counsel was ineffective by failing to
obtain medical records to show treatment and description of wounds
relating to herself and the victim. We deny relief because Baker offers
nothing but speculation regarding the contents of the medical records.
Furthermore, the jury heard evidence regarding the victim’s blood alcohol
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STATE v. BAKER
Decision of the Court
concentration and Baker’s wound and saw a photograph of Baker’s injury
taken shortly after the incident.
¶7 Baker next argues her trial lawyer failed to inform her of a
plea offer that would have permitted her to plead guilty to negligent
homicide. We deny relief because nothing in the record reflects such an
offer. When the initial joint pretrial statement was filed, there was no plea
offer. The State’s status memorandum filed a month later again noted there
was no plea offer. The parties’ next joint pretrial statement again noted
there was no plea offer. The sole settlement conference occurred
approximately seven weeks later, at which time the State offered to allow
Baker to plead no contest to second degree murder in exchange for a
sixteen-year cap on her sentence. Baker rejected that offer repeatedly,
stating she would not even accept an offer of ten years’ imprisonment. The
final pretrial statement identified only the offer made at the settlement
conference. Based on the record before us, Baker has failed to present a
colorable claim that counsel failed to inform her of a plea offer.
¶8 Baker further argues her trial counsel was ineffective by
failing to present evidence that she killed the victim in self-defense and/or
to prevent the victim from committing a crime and by failing to request jury
instructions in furtherance of these defenses. But Baker’s current assertions
are inconsistent with her trial defense. The defense at trial was that Baker
and the victim loved each other, that Baker remembered nothing of the
incident, and that the victim “somehow” got stabbed to death by someone
other than Baker. Because the evidence and instructions Baker now
suggests would have been inconsistent with her trial defense, she has failed
to present a colorable claim of ineffective assistance of counsel as to this
issue.
¶9 Baker also argues trial counsel was ineffective by failing to
request instructions on lesser-included offenses and contends appellate
counsel was ineffective by failing to argue on appeal that the trial court
erred by failing to give such instructions. Once again, though, such
instructions would have been incompatible with Baker’s actual trial
defense. Moreover, the trial court included instructions on manslaughter
as a lesser-included offense in its draft instructions, but defense counsel
asked the court to remove them after consulting with Baker. We therefore
deny relief as to this issue.
¶10 Baker next contends her trial lawyer was ineffective by failing
to object to a detective’s testimony about how he believed Baker injured
herself and to the detective’s reenactment before the jury of what he
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STATE v. BAKER
Decision of the Court
believed happened. The detective testified that he had seen cases where
people injured themselves with their own knives. The detective testified
that such injuries can be caused when the attacker strikes at the victim and
then cuts or stabs herself with the “follow through.” Defense counsel
objected based on foundation, and the court sustained the objection. The
detective then offered additional testimony about his training and
experience with similar cases. This additional foundation was sufficient to
overcome the foundation objection. Additionally, nothing in the record
suggests the detective “re-enact[ed]” or otherwise demonstrated what he
believed happened in front of the jury. We therefore deny relief as to this
asserted issue.
¶11 Finally, Baker makes the bald assertion that trial counsel
failed to discuss trial strategy with her. We deny relief because “[m]erely
mentioning an argument is not enough.” State v. Moody, 208 Ariz. 424, 452
n.9, ¶ 101 (2004). More fundamentally, “the power to decide questions of
trial strategy and tactics rests with counsel.” State v. Lee, 142 Ariz. 210, 215
(1984). “Defense counsel’s determinations of trial strategy, even if later
proven unsuccessful, are not ineffective assistance of counsel.” State v.
Valdez, 160 Ariz. 9, 14 (1989).
CONCLUSION
¶12 For the foregoing reasons, we grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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