State v. McElveen ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID MCELVEEN, Petitioner.
No. 1 CA-CR 13-0621 PRPC
FILED 4-14-2015
Petition for Review from the Superior Court in Maricopa County
No. CR2009-007600-001
The Honorable John C. Rea, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Lisa Marie Martin
Counsel for Respondent
David McElveen, Kingman
Petitioner
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco joined.
STATE v. MCELVEEN
Decision of the Court
B R O W N, Judge:
¶1 David McElveen petitions this court for review from the
dismissal of his petition for post-conviction relief. We have considered the
petition for review and, for the reasons stated, grant review and deny relief.
¶2 A jury convicted McElveen of two counts of trafficking in the
identity of another and the trial court sentenced him to concurrent terms of
7.5 years’ imprisonment for each count. We affirmed McElveen’s
convictions and sentences on direct appeal. State v. McElveen, 1 CA-CR 10-
0374, 2011 WL 887755 (Ariz. App. Mar. 15, 2011) (mem. decision).
McElveen filed a pro se petition for post-conviction relief after his counsel
found no colorable claims for relief. The trial court summarily dismissed
the petition and McElveen now seeks review.
¶3 McElveen claims he has newly discovered evidence that the
undercover officer committed perjury when he testified at trial. McElveen
first argues the officer committed perjury when he testified that he did not
record the transaction between himself and McElveen because he did not
have access to recording equipment that day. McElveen contends newly
discovered evidence shows the officer had access to recording equipment
because he recorded another transaction in an unrelated matter earlier that
day. McElveen next argues the officer committed perjury when the officer
testified he did not ask “Joe,” another person involved in the events, to
obtain stolen identification cards and credit cards for the officer. McElveen
argues the newly discovered evidence shows the officer did make such a
request.
¶4 For a defendant to obtain post-conviction relief based on
newly discovered evidence:
(1) The evidence must appear on its face to have existed at the
time of trial but be discovered after trial;
(2) The petition must allege facts from which the court could
conclude the defendant was diligent in discovering the facts
and bringing them to court’s attention;
(3) The evidence must not simply be cumulative or
impeaching;
(4) The evidence must be relevant to the case;
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STATE v. MCELVEEN
Decision of the Court
(5) The evidence must be such that it would likely have
altered the verdict, finding, or sentence if known at the time
of trial.
State v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989).
¶5 McElveen conceded below that he obtained this alleged new
information based on his review of police reports. McElveen does not
contend he did not possess or otherwise have access to the reports prior to
trial, but argues only that he did not “scour” the reports until after trial.
This is not “newly discovered” evidence. Additionally, the evidence
would, at best, serve only to impeach the officer. As noted above, to obtain
post-conviction relief based on newly discovered evidence, the new
evidence must not serve merely to impeach. Id.¶6 Furthermore, the evidence does not establish that the officer
committed perjury or that his testimony was inconsistent with any evidence
in any material way. Regarding the availability of recording equipment,
the officer testified he sometimes carried his recording equipment with him
in his vehicle, but he did not have it with him at the time he met with
McElveen. It was defense counsel who subsequently asked the officer on
cross-examination, “[Y]ou didn’t have . . . your recording device that day,”
to which the officer answered “[t]hat’s correct.” That a police report in a
separate matter shows the officer recorded a conversation with a different
suspect earlier in the day does not establish that the officer had operable
recording equipment available to him when he spoke with McElveen.
¶7 Regarding whether the officer asked “Joe” to get stolen
identification cards and credit cards for the officer, the officer testified he
never asked Joe to obtain stolen property for him. The language McElveen
identifies in a police report does not directly contradict this. The officer
wrote in his report that he told Joe “that if [Joe] was to come into possession
of any checks or credit cards to give [the officer] a call so [the officer] could
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STATE v. MCELVEEN
Decision of the Court
take a look at them.” This is not the equivalent of telling Joe to obtain stolen
identification cards and credit cards for the officer.
¶8 For the reasons stated above, we grant review and deny relief.
:ama
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