State of Arizona v. Samuel Wayne Swoopes

FILED BY CLERK
SEP 19 2007
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2006-0174-PR
Petitioner/Cross-Respondent, ) DEPARTMENT A
)
v. ) OPINION
)
SAMUEL WAYNE SWOOPES, )
)
Respondent/Cross-Petitioner. )
)
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-15623
Honorable Frank Dawley, Judge Pro Tempore
REVIEW GRANTED;
RELIEF GRANTED IN PART AND DENIED IN PART
Barbara LaWall, Pima County Attorney
By Taren M. Ellis and Jacob R. Lines Tucson
Attorneys for Petitioner/
Cross-Respondent
Isabel G. Garcia, Pima County Legal Defender
By Joy Athena Tucson
Attorneys for Respondent/
Cross-Petitioner
P E L A N D E R, Chief Judge.
¶1 Based on a home invasion in 1984, respondent/cross-petitioner Samuel Wayne
Swoopes was convicted after a jury trial of three counts each of armed robbery and
kidnapping and one count each of first-degree burglary, sexual assault, and aggravated
robbery. This court affirmed the convictions and sentences on appeal, State v. Swoopes, 155
Ariz. 432, 747 P.2d 593 (App. 1987) (Swoopes I ), and our supreme court denied review.
State v. Swoopes, Ariz. Sup. Ct. No. CR-87-0299-PR (order filed Jan. 12, 1988). Swoopes
first sought post-conviction relief in 1990, which both the trial court and this court denied.
State v. Swoopes, No. 2 CA-CR 90-0715-PR (order filed Feb. 21, 1991). Thereafter,
Swoopes sought relief in federal district court, filing a petition for writ of habeas corpus.
Ultimately, in March 2003, the district court stayed that proceeding so Swoopes could
“bring[] his unexhausted claims to the state courts.”1 Swoopes then commenced this, his
second post-conviction proceeding, pursuant to Rule 32, Ariz. R. Crim. P., 17 A.R.S.
¶2 Therein, Swoopes raised claims of, inter alia, ineffective assistance of counsel
(IAC), newly discovered evidence, and violation of his right to be present at all critical stages
of trial court proceedings. More specifically, he claimed that the judge who conducted the
trial (Judge Thomas Meehan) had responded improperly and inaccurately to a question from
the jury during deliberations; that Swoopes did not learn about the response until it was
1
See Swoopes v. Sublett, 527 U.S. 1001, 119 S. Ct. 2335 (1999) (granting petition
for writ of certiorari, vacating judgment, and remanding case to federal court of appeals for
reconsideration); Swoopes v. Sublett, 196 F.3d 1008, 1011 (9th Cir. 1999) (decision on
remand finding Swoopes not required to seek review by Arizona Supreme Court to exhaust
claims for federal habeas corpus purposes, and remanding case to district court for further
proceedings).
2
discovered by his counsel during the federal habeas proceedings; that the error was
exacerbated by the prosecutor’s closing argument; that Swoopes was thereby deprived of a
fair trial; and that both trial and appellate counsel had been ineffective in, respectively, not
objecting to Judge Meehan’s response or otherwise protecting Swoopes’s rights and not
raising this claim as an issue on appeal.
¶3 After argument, the trial court granted relief and ordered a new trial. The state
seeks review of that order, arguing Swoopes is precluded from obtaining relief on any of his
claims. In his response and cross-petition for review, Swoopes urges us to deny review or
relief on the state’s petition and alternatively challenges the trial court’s denial of relief on
the remaining claims he raised in this Rule 32 proceeding.
¶4 We will not disturb a trial court’s ruling on a petition for post-conviction
relief absent a clear abuse of discretion. State v. Schrock, 149 Ariz. 433, 441, 719 P.2d
1049, 1057 (1986). “We review a trial court’s factual findings for clear error.” State v.
Herrera, 183 Ariz. 642, 648, 905 P.2d 1377, 1383 (App. 1995). But a trial court’s
erroneous ruling on a question of law, such as whether a post-conviction claim is or is not
precluded, constitutes an abuse of discretion. See State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d
148, 150 (2006); State v. Jensen, 193 Ariz. 105, ¶¶ 9-13, 970 P.2d 937, 938-39 (App.
1998). Thus, although we generally defer to a trial court’s factual findings unless clearly
erroneous, we are not bound by a court’s legal ruling on the issue of preclusion in post-
conviction proceedings. See A.R.S. § 13-4232(C) (“[A]ny court on review of the record
3
may determine and hold that an issue is precluded regardless of the state’s failure to raise
the preclusion issue.”); Ariz. R. Crim. P. 32.2(c) (same).
¶5 Finding Swoopes’s IAC and related claims precluded, we conclude that the
trial court erred as a matter of law in ruling otherwise and in granting him post-conviction
relief. We further conclude that the court did not abuse its discretion by denying relief on
Swoopes’s remaining claims.
I.
¶6 Identification was the primary issue in this case. Swoopes, along with two
other men, entered the home of Linda and Randy D., a married couple, robbing them and
their guest Mark H. at gunpoint. One of the other men sexually assaulted Linda. The
victims eventually identified Swoopes as the gunman. But shortly after the incident they
were unable to clearly describe Swoopes or identify him in a photographic lineup. None of
the victims described Swoopes as having any significant facial scarring; however, it is
undisputed that Swoopes has a large blemish or discoloration above his right eye.
¶7 Well over a year after the incident, Randy and Mark learned there had been
a similar home invasion in the neighborhood the same night and the suspect was being tried
on various charges relating to that incident. They attended that trial, observed Swoopes, and
immediately recognized him as the gunman in the crimes against them. Thereafter, Linda
identified Swoopes in a live lineup, telling police she was looking for a scar that was an
identifying feature of his face. All three victims identified Swoopes at trial in this case.
4
¶8 Michael Mussman, the attorney who represented Swoopes on the charges that
arose out of the other home invasion, testified at trial in this case about having seen Randy
and Mark at the prior trial in the other case and about having attended the live, June 1985
lineup during which Linda had identified Swoopes. Mussman made similar statements in
his November 2002 affidavit, which was submitted in the federal habeas corpus proceeding
and filed below in support of Swoopes’s second post-conviction petition in this matter.
Mussman stated at trial and in his affidavit that Linda had told Detective Skuta she was
looking for a scar. In his affidavit he also noted she had not previously mentioned a scar.
Swoopes also submitted in both this post-conviction proceeding and the prior federal court
proceeding an affidavit of investigator Gene Reedy of the Pima County Legal Defender’s
Office, who also had attended the 1985 live lineup and described what he considered “very
unusual” circumstances surrounding that. Swoopes unsuccessfully challenged the
identification process as unduly suggestive before trial, during trial, and on appeal. See
Swoopes I, 155 Ariz. at 434-35, 747 P.2d at 595-96.
¶9 During its deliberations, the jury sent a written question to the trial judge,
Judge Meehan, asking to see “any statement made by Linda of a blemish before the physical
lineup.” The judge responded in writing that “[t]he statement is not admissible” and
directed the jurors to “[r]ely on [their] collective memories.” There was no record
concerning the question, other than the written question itself and the response, or of the
judge’s having consulted counsel about the question and the response the court intended to
5
give. The trial judge and the prosecutor who tried the case are now deceased, and as
discussed below, Swoopes’s trial counsel has no recollection of the event.
II.
¶10 Swoopes contended below in this second Rule 32 proceeding that the trial
judge’s response, which he claims was an improper, ex parte communication with the jury,
violated his due process right to a fair trial, infringed his right to be present at all critical
stages of the proceedings, and resulted in fundamental error. Swoopes submitted a statement
by one of the jurors, Winsome M., who apparently had been involved in sending the
question to the judge, about the importance of the question and answer to the jury’s verdicts.
Swoopes contended the error was compounded by the prosecutor’s false suggestion during
closing argument that the victims had relied on the scar or blemish to identify Swoopes from
the beginning.
¶11 Swoopes acknowledged in his affidavit supporting his second petition for post-
conviction relief he had known “some time before . . . fil[ing] a pro se, supplemental opening
brief in the direct appeal” that the jury had asked during deliberations whether victim Linda
D. had ever mentioned before the physical lineup having seen a scar or blemish on the
gunman’s face.2 He claimed that he also “was told . . . the judge had responded . . . in the
2
Swoopes also averred that, although he could not remember “exactly when” he was
told about the note before his direct appeal, he “may have been told . . . by [his] trial
attorney.” Thus, it is not at all clear that Swoopes was unaware during trial of the note from
the jury, and in fact he acknowledged in his response filed in this court that he “was aware
that the jury had a question.”
6
neutral, without giving [the jurors] any more information or instruction,” and that he did not
learn about the judge’s actual response or personally see the jury’s note and the response
until sometime in 2002, during the habeas proceedings in federal court.
¶12 Swoopes maintained, inter alia, he was entitled to post-conviction relief based
on newly discovered evidence, pursuant to Rule 32.1(e). He also contended both his trial
and appellate counsel had been ineffective in not raising the claims relating to Judge
Meehan’s handling of the jury note, suggesting the error caused by the purported improper
ex parte communication by Judge Meehan with the jury was fundamental and of “sufficient
constitutional magnitude” that it was not waived by his failure to raise it until this
proceeding. Ariz. R. Crim. P. 32.2 cmt. Swoopes also made a claim of actual innocence,
seeking relief pursuant to Rule 32.1(h).
¶13 Swoopes’s trial counsel, Michael Addis, stated in his affidavit, submitted in
support of both the Rule 32 petition below and the prior federal habeas proceeding, that he
did not recall the note that had been submitted by the jury during its deliberations. He
stated he “was shown a copy of that note in 2002” and did not remember having seen Judge
Meehan’s response at trial but if he had, he would have objected because
the response [was] an improper and inaccurate comment on the
evidence; as written, the response would have given the jury the
false belief that Linda [D.] had made a statement to police—at
some time prior to her identification of Mr. Swoopes in the live
lineup—in which she mentioned the existence of a scar on the
gunman; the response therefore would have substantially
prejudiced Mr. Swoopes by greatly and improperly enhancing
7
the credibility of Linda [D.]’s identification which the jury was
questioning and clearly had doubts about.
¶14 Notwithstanding those averments, the trial court found there was insufficient
evidence that any ex parte communication had occurred between Judge Meehan and the
jury. Because that finding is not clearly erroneous, we have no basis for disturbing it. See
Herrera, 183 Ariz. at 648, 905 P.2d at 1383. That finding, in turn, arguably supports an
inference that Swoopes’s trial counsel had known of, been present for, or otherwise been
consulted on Judge Meehan’s response to the jury’s note.
¶15 Although Swoopes’s trial counsel avowed he “would have objected to the
judge’s response if [he] had been made aware of it,” such speculative assertions do not
establish that any improper ex parte communication occurred between the trial judge and
jury. See State v. Rosario, 195 Ariz. 264, ¶ 23, 987 P.2d 226, 230 (App. 1999) (claim for
post-conviction relief must be based on “a provable reality, not mere speculation”). And,
importantly, Swoopes’s trial counsel acknowledged he simply had “no recollection of the
mid-deliberation note that was submitted by the jury to the trial judge,” had “no recollection
of whether there was a hearing in court to discuss” that note, and simply “[did] not recall
having ever before [2002] seen the response to the jury which was written on it by Judge
Meehan.” Again, trial counsel’s lack of recollection negates neither the trial court’s
observation that Judge Meehan probably “contacted counsel ‘off the record’ about the note
as was customary and failed to make a subsequent record,” nor the court’s implicit ruling
that no “‘ex parte’ communication with the jury” had occurred. Cf. Graham County v.
8
Buhl, 76 Ariz. 275, 279, 263 P.2d 537, 539 (1953) (taking judicial notice of common
practice of trial court judges).
III.
¶16 That no improper ex parte communication occurred, however, does not resolve
the question of whether Swoopes’s claims relating to the jury note are precluded. Rule
32.2(a)(3) provides that a defendant is precluded from obtaining post-conviction relief
“based upon any ground . . . waived at trial, on appeal, or in any previous collateral
proceeding,” except claims, such as claims of newly discovered evidence, that are expressly
excepted from the rule of preclusion. See Ariz. R. Crim. P. 32.2(b); see also A.R.S. § 13-
4232; Ariz. R. Crim. P. 32.1(d), (e), (f), (g), and (h).
¶17 Of the various, specified exceptions to preclusion set forth in Rule 32.2(b),
Swoopes relied below primarily on the exception for “newly discovered material facts,” Rule
32.1(e), stating that was “the bas[i]s for all of [his] claims.”3 In other words, Swoopes’s
claim hinged largely on his assertion of “newly discovered [facts] that [Judge Meehan had]
engaged in an ex parte communication with the jury, in which the judge falsely instructed
the jurors that Linda D[.] had made a statement about the scar prior to the physical lineup.”
The trial court apparently rejected Swoopes’s claim of newly discovered facts, stating “the
note itself and the Judge’s response have always been part of the court file and available for
Swoopes also included below a claim that he “is factually innocent of the crimes of
3
which he was convicted.” If proven, such a claim is not subject to preclusion. See Ariz. R.
Crim. P. 32.1(h), 32.2(b). The trial court, however, denied relief on that claim, and we have
no basis for disturbing its ruling. See ¶ 48, infra.
9
inspection.” But the court further found that, although Swoopes “was made aware of the
note soon after the jury returned its verdicts,” he personally “did not learn of the contents
of the note and response until his most recent petition was being prepared.”
¶18 Although the trial court’s order is not entirely clear on this point, the court
expressly ruled “[t]he jury note is not newly discovered evidence.” And Swoopes
acknowledges and challenges the trial court’s determination that he was not entitled to post-
conviction relief pursuant to Rule 32.1(e). Considered in their entirety and in context, the
trial court’s findings of fact and legal conclusions suggest it determined the note and the trial
judge’s response had existed at the time of trial and, through the exercise of diligence, could
have been discovered previously. These determinations are supported by the record.
Consequently, Swoopes was not entitled to relief on this ground, see Ariz. R. Crim. P.
32.1(e)(2), and the trial court did not abuse its discretion in so ruling. See State v. Bilke,
162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (defendant must show evidence existed at
time of trial, defendant exercised diligence in presenting claim, and evidence is not merely
cumulative or impeaching, but relevant and, if known, would have changed outcome of
trial); see also State v. Mata, 185 Ariz. 319, 333, 916 P.2d 1035, 1049 (1996) (“Simply
because defendant presents the court with evidence for the first time does not mean that such
evidence is ‘newly discovered.’”).
¶19 Having upheld the trial court’s ruling that Swoopes’s claim does not fall within
Rule 32.1(e) as newly discovered evidence, we next must determine if the court’s ultimate
10
refusal to find the claim precluded is otherwise supportable. Unfortunately, the precise legal
basis for that ruling is not clear. The trial court stated that, “[b]ecause [the jury note] issue
goes to the fundamental fairness of the trial and because [Swoopes] did not personally waive
it, it would be unfair to preclude [his] claim.” But our supreme court has not recognized
fairness as a relevant, let alone controlling, factor in resolving preclusion issues. See Stewart
v. Smith, 202 Ariz. 446, ¶ 12, 46 P.3d 1067, 1071 (2002); Ariz. R. Crim. P. 32.2 and 32.2
cmt.
¶20 Further complicating our analysis is the somewhat confusing approach
Swoopes has used in arguing against preclusion, both in the trial court and on review to this
court. For example, he argues he “never waived his claim to a fair jury trial and to be
present at all critical stages of the proceedings” and, therefore, Rule 32.2(a)(3) does not
apply to those claims. Swoopes further argues his IAC claim is not precluded because “he
did not knowingly, intelligently, and voluntarily waive his right to effective appellate counsel
and the rights counsel failed to protect.” But whether Swoopes’s claim is based purely on
alleged IAC or, rather, on alleged violations of various substantive rights, we conclude his
claim relating to Judge Meehan’s response to the jury’s note is precluded. Therefore, the
trial court abused its discretion in granting relief on that claim. And, contrary to Swoopes’s
contention, our supreme court’s decision in Smith, 202 Ariz. 446, 46 P.3d 1067, does not
support his argument that this claim is not precluded; indeed, Smith supports the opposite
conclusion.
11
IV.
¶21 In Smith, our supreme court examined the distinction between claims that may
be precluded under Rule 32.2 based on the defendant’s mere failure to raise them previously
and claims that require a personal waiver before they may be deemed waived and, therefore,
precluded. Procedurally, Smith involved a defendant who previously had litigated “a series
of unsuccessful petitions for state post-conviction relief,” one of which (the third) had raised
IAC claims against his trial and appellate counsel. Smith, 202 Ariz. 446, ¶ 4, 46 P.3d at
1069. As the court pointed out, the 1992 comment to Rule 32.2 acknowledged that claims
of “sufficient constitutional magnitude” must be knowingly, voluntarily, and intelligently
waived by the defendant before they may be precluded pursuant to Rule 32.2(a)(3). Smith,
202 Ariz. 446, ¶ 8, 46 P.3d at 1070. The court stated,
The question whether an asserted ground is of “sufficient
constitutional magnitude” to require a knowing, voluntary and
intelligent waiver for purposes of Rule 32.2(a)(3), see Comment
to Rule 32.2(a)(3), does not depend upon the merits of the
particular ground. It depends merely upon the particular right
alleged to have been violated.
202 Ariz. 446, ¶ 10, 46 P.3d at 1071; see also id. ¶ 3.
¶22 As the supreme court noted in Smith, when Rule 32.2 was amended in 1992,
a comment was added:
“[S]ome issues not raised at trial, on appeal, or in a previous
collateral proceeding may be deemed waived without
considering the defendant’s personal knowledge, unless such
12
knowledge is specifically required to waive the constitutional
right involved. If an asserted claim is of sufficient constitutional
magnitude, the state must show that the defendant ‘knowingly,
voluntarily and intelligently’ waived the claim. For most claims
of trial error, the state may simply show that the defendant did
not raise the error at trial, on appeal, or in a previous collateral
proceeding, and that would be sufficient to show that the
defendant has waived the claim. If defense counsel’s failure to
raise an issue at trial, on appeal or in a previous collateral
proceedings is so egregious as to result in prejudice as that term
has been constitutionally defined, such failure may be raised by
means of a claim of ineffective assistance of counsel.”
202 Ariz. 446, ¶ 8, 46 P.3d at 1070, quoting former Ariz. R. Crim. P. 32.2 cmt.4 The court
explained in Smith how this analytical framework is applied to claims of ineffective
assistance of counsel.
With some petitions, the trial court need not examine the
facts. For example, if a petitioner asserts ineffective assistance
of counsel at sentencing, and, in a later petition, asserts
ineffective assistance of counsel at trial, preclusion is required
without examining facts. The ground of ineffective assistance of
counsel cannot be raised repeatedly. There is a strong policy
against piecemeal litigation. See State v. Spreitz, 202 Ariz. 1,
39 P.3d 525 (2002). In other situations, the court must
determine the particular right involved by looking at the facts of
the claim, not to decide its merits, but to decide whether, at its
core, the claim implicates a significant right that requires a
knowing, voluntary, and intelligent waiver for preclusion to
apply under Rule 32.2(a)(3). Thus, if petitioner asserts
ineffective assistance of counsel for the first time in a successive
Rule 32 petition, the question of preclusion is determined by
the
4
Effective December 1, 2002, our supreme court again amended its comment to Rule
32.2 by deleting the last sentence of the 1992 comment quoted above. See 203 Ariz. LXX
(2002); Ariz. R. Crim. P. 32.2 cmt., 17 A.R.S.
13
nature of the right allegedly affected by counsel’s ineffective
performance. If that right is of sufficient constitutional
magnitude to require personal waiver by the defendant and
there has been no personal waiver, the claim is not precluded.
If it is not of such magnitude, the claim is precluded.
202 Ariz. 446, ¶ 12, 46 P.3d at 1071.
¶23 Because Swoopes raised below a separate claim of IAC and argues on review
that he “did not waive the right to effective appellate counsel,” we first address his IAC
claim. It is undisputed that Swoopes raised a claim of IAC in his first post-conviction
petition in 1990.5 In general, when “ineffective assistance of counsel claims are raised, or
could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims
of ineffective assistance will be deemed waived and precluded.” State v. Spreitz, 202 Ariz.
1, ¶ 4, 39 P.3d 525, 526 (2002); see also State v. Bennett, 213 Ariz. 562, ¶ 14, 146 P.3d
63, 67 (2006) (same); Mata, 185 Ariz. at 334, 916 P.2d at 1050 (rejecting approach that
would permit “a never-ending tunnel” of post-conviction proceedings in which “defendants
5
We have been provided very little to tell us precisely what issues were raised in the
first Rule 32 proceeding, and because of the age of that proceeding, our records do not
contain any documents shedding light on that question. And, in 1990, when Swoopes filed
his petition for review in this court, a defendant was not required to submit a memorandum
with the petition for review but, rather, could seek review summarily, which Swoopes did,
as the copy of the petition for review attached to the post-conviction petition in this
proceeding shows. The record does reflect, however, that in a “Petition for Review of Post-
Conviction Relief” Swoopes filed with our supreme court in November 1991, he listed IAC
as an issue presented. In addition, in a January 2002 filing in the federal habeas proceeding,
Swoopes acknowledged having previously “presented th[e] issue [of IAC] to the Arizona
courts by raising the claim in his [first] pro se petition for post-conviction relief” in 1990.
14
could endlessly litigate effectiveness of counsel by claiming that their latest version . . . was
not presented on earlier petitions due to counsel’s inadequate representation”).6
¶24 This is not a situation in which a petitioner “asserts ineffective assistance of
counsel for the first time in a successive Rule 32 petition.” Smith, 202 Ariz. 446, ¶ 12, 46
P.3d at 1071 (emphasis added). Having previously raised IAC claims in his first Rule 32
proceeding, “the nature of the right allegedly affected by counsel’s ineffective performance”
is neither determinative nor relevant. Id. Rather, because IAC claims “cannot be raised
repeatedly,” and because our supreme court has expressed “a strong policy against piecemeal
litigation,” “preclusion is required without examining facts.” Id.; cf. State v. Herrera, 183
Ariz. 642, 647, 905 P.2d 1377, 1382 (App. 1995) (“Once the issues have been narrowed
and presented, appellate counsel’s waiver of other possible issues binds the defendant, and
those waived issues cannot be resurrected in post-conviction proceedings.”), citing State v.
Alford, 157 Ariz. 101, 102-03, 754 P.2d 1376, 1377-78 (App. 1988).
¶25 Implicitly acknowledging that IAC claims against trial counsel were previously
raised and are now precluded, see State v. Conner, 163 Ariz. 97, 100, 786 P.2d 948, 951
6
In State v. Bennett, 213 Ariz. 562, ¶ 14, 146 P.3d 63, 67 (2006), our supreme court
acknowledged its holding in State v. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d 525, 526 (2002),
that, in general, claims of ineffective assistance of counsel that were raised or could have
been raised in an initial post-conviction proceeding are regarded as waived and precluded
if raised in a successive petition. But, that rule does not apply when appellate counsel and
counsel in the first Rule 32 proceeding are one and the same because appellate counsel is
not expected to raise and argue his or her own ineffectiveness. Bennett, 213 Ariz. 562, ¶¶
14-15, 146 P.3d at 67. Bennett is not implicated here because Swoopes was represented by
different attorneys on appeal and in his first Rule 32 proceeding.
15
(1990), Swoopes argued below in this second Rule 32 proceeding that his “claim of
appellate counsel ineffectiveness is not precluded because this is the first time he has raised
that claim.” He repeats that argument on review. But in its opinion on remand in the federal
habeas proceedings, the Ninth Circuit Court of Appeals noted the district court had found
that claims of IAC both at trial and on direct appeal “were raised in Swoopes’s [first] Rule
32 petition.” Swoopes v. Sublett, 196 F.3d 1008, 1009 & 1008 n.1 (9th Cir. 1999). And,
again, successive IAC claims “will be deemed waived and precluded” not only when they
previously were raised, but also when they “could have been raised” in a prior Rule 32
proceeding. Spreitz, 202 Ariz. 1, ¶ 4, 39 P.3d at 526; see also Bennett, 213 Ariz. 562, ¶ 15,
146 P.3d at 67 (IAC claim not raised in defendant’s first post-conviction relief petition
“[n]ormally . . . would now be precluded”). Accordingly, even if Swoopes did not
specifically assert an IAC claim against appellate counsel before this proceeding, it is no less
precluded.7 For these reasons, to the extent Swoopes sought relief based on an alleged IAC
7
Outside the context of federal habeas corpus proceedings, the precise implications
of our supreme court’s holding in Smith remain somewhat obscure. But what is clear from
the United States Supreme Court’s subsequent opinion in Smith’s case is that Rule
32.2(a)(3) continues to permit a finding of waiver and preclusion when a defendant has
failed to assert IAC claims in a first post-conviction proceeding. See Stewart v. Smith, 536
U.S. 856, 860-61, 122 S. Ct. 2578, 2581-82 (2002) (“The state court did not even reach the
merits of respondent’s ineffective-assistance-of-trial-counsel claim, finding it waived because
respondent had failed to raise it in prior petitions for post-conviction relief. . . . [T]he state
court’s determination that respondent waived his ineffective-assistance-of-counsel claim
under Ariz. Rule Crim. Proc. 32.2(a)(3) did not require an examination of the merits of that
claim.”).
16
claim, the trial court erred in ruling that Swoopes “is not precluded from raising his claim
at this time.”8
V.
¶26 Nonetheless, Smith recognized a possible exception to preclusion under Rule
32.2(a)(3) for other claims that involve a right “of sufficient constitutional magnitude to
require personal waiver by the defendant.” Id. ¶ 12. In an effort to bring his claim within
this exception to preclusion, Swoopes argues that, unless personally waived in a knowing,
voluntary, and intelligent manner, “a defendant has a right of sufficient constitutional
magnitude to be present when the judge answers a deliberating jury’s question about a
factual matter.” Because that right was neither recognized nor waived before “the trial judge
communicated his answer to the deliberating jury’s factual question,” Swoopes further
argues, his claim is not precluded even though raised for the first time in this second Rule
32 proceeding. We conclude, however, that any error here was trial error and did not
involve a right of “sufficient constitutional magnitude” so as to render preclusion principles
inapplicable.
¶27 The constitutional rights on which Swoopes bases his argument are the general
due process right of every defendant to a fair trial, which the trial court focused on in
8
We note that, although the trial court did not expressly address or make any findings
on Swoopes’s IAC claims, the court stated “[t]he failure to previously raise this issue
[relating to the jury note and response] rests on the shoulders of previous counsel.” The
court, however, did not identify which counsel it was referring to or what effect, if any, that
finding might have on the legal issues relating to preclusion.
17
granting relief,9 see Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 3101, 3106 (1986), and
the Sixth Amendment right “to be present at all critical stages of the proceedings.” See State
v. Dann, 205 Ariz. 557, ¶ 53, 74 P.3d 231, 245 (2003); State v. Schackart, 190 Ariz. 238,
255, 947 P.2d 315, 332 (1997). But, as for the due process claim, any error, including trial
error, could be characterized as affecting a defendant’s right to a fair trial. If that were
sufficient to bring the error under the umbrella of sufficient constitutional magnitude for
purposes of Rule 32.2, all error could be so characterized, and arguably, no claim could be
precluded without a personal waiver. In our view, this is not what our supreme court
intended in Smith.
¶28 The court in Smith recognized that the mere assertion by a defendant that his
or her right to a fair trial has been violated is not a claim of sufficient constitutional
magnitude for purposes of Rule 32.2. 202 Ariz. 446, ¶ 12, 46 P.3d at 1071. Rather, to avoid
preclusion, a defendant must show a constitutional right is implicated, one that can only be
waived by a defendant personally. Id. The court noted some of the relatively few rights that
can be so characterized. Id. ¶ 9, citing State v. Moody, 192 Ariz. 505, ¶ 22, 968 P.2d 578,
582 (1998) (waiver of right to counsel); State v. Butrick, 113 Ariz. 563, 566, 558 P.2d 908,
9
The trial court ultimately ordered a new trial after finding that a factually
unsupported portion of “the prosecutor’s argument and [Judge Meehan’s] subsequent
response to the jury note combined to deprive [Swoopes] of a fair trial.” For reasons noted
above, however, that finding does not necessarily equate to a finding that any right “of
sufficient constitutional magnitude to require personal waiver by the defendant” was at issue
and violated, nor did the trial court make any such finding. Stewart v. Smith, 202 Ariz. 446,
¶ 12, 46 P.3d 1067, 1071 (2002).
18
911 (1976) (waiver of right to jury trial); State v. Smith, 197 Ariz. 333, ¶ 17, 4 P.3d 388,
394 (App. 1999) (right to twelve-person jury); see also Schneckloth v. Bustamonte, 412
U.S. 218, 237, 93 S. Ct. 2041, 2052-53 (1973) (“Almost without exception, the requirement
of a knowing and intelligent waiver has been applied only to those rights which the
Constitution guarantees to a criminal defendant in order to preserve a fair trial.”); cf. State
v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) (although “certain basic decisions
have come to belong to an accused,” such as “[t]he ultimate decisions on whether to plead
guilty, whether to waive jury trial, and whether to testify,” “the power to decide questions
of trial strategy and tactics,” including what witnesses to call at trial, “rests with counsel”).
An alleged violation of the general due process right of every defendant to a fair trial,
without more, does not save that belated claim from preclusion.
¶29 Swoopes further asserts, however, that he “never waived his claim . . . to be
present at all critical stages of the proceedings.” As noted earlier, he maintains that any
communication on factual issues between a trial judge and jury is such a critical stage and
that, absent a valid, personal waiver, a defendant has a constitutional right to be present for
such communication. Therefore, Swoopes argues, his claim is not precluded. A close
review of the authorities on which he relies, however, demonstrates that this assertion is
overbroad and conflates different constitutional bases for a defendant’s right to be present.
¶30 As the state points out, quoting United States v. Gagnon, 470 U.S. 522, 526,
105 S. Ct. 1482, 1484 (1985), “there is a right to be present that is ‘rooted to a large extent
19
in the Confrontation Clause of the Sixth Amendment.” Additionally, the “right is protected
by the Due Process Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him.” Id. This due process right, however, is
limited, in that the “‘presence of a defendant is a condition of due process to the extent that
a fair and just hearing would be thwarted by his absence, and to that extent only.’” Id.,
quoting Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S. Ct. 330, 333 (1934).
¶31 Consistent with this Supreme Court authority, Arizona cases also have
addressed a defendant’s right to be present at various stages of his or her trial. In State v.
Christensen, 129 Ariz. 32, 38, 628 P.2d 580, 586 (1981), our supreme court held that the
appellant “did not have a constitutional right to be personally present in the court’s
chambers to discuss how to handle the jury’s communications” to the trial judge during
deliberations. In so holding, the court rejected the appellant’s argument that “he had a
federal constitutional right to be present in person, which right cannot be fulfilled by the
presence of his counsel.” Id. Rather, the court explained, “[t]he right to be personally
present applies only to those proceedings in open court ‘whenever his presence has a
relation, reasonably substantial, to the fullness of his opportunity to defend against the
charge.’” Id., quoting Snyder, 291 U.S. at 105-06, 54 S. Ct. at 332; see also Dann, 205
Ariz. 557, ¶¶ 52-73, 74 P.3d at 245-49 (in capital case, any error resulting from defendant’s
absence from multiple conferences before and during trial waived and not fundamental when
no showing that his presence would have affected his ability to defend against charges or
20
how his absence prejudiced him); Schackart, 190 Ariz. at 255, 947 P.2d at 332 (on appeal
after resentencing, supreme court did not address alleged violations of defendant’s right to
attend trial court proceedings because such issues “were not raised in his first appeal, and
are therefore waived”).10 Based on these controlling authorities, and in view of the trial
court’s rejection of Swoopes’s assertion that the trial judge had engaged in improper ex parte
communications with the jury, we reject Swoopes’s broad argument that a defendant’s
“presence is a right of constitutional magnitude that must be personally waived when the
trial judge communicates his answer to a deliberating jury’s question concerning a factual
issue.”
¶32 The Arizona cases on which Swoopes relies to support his argument to the
contrary are distinguishable or inapposite. Some involved a defendant’s Sixth Amendment
Confrontation Clause right, for which he or she must personally waive the right to be
present. See State v. Perez, 115 Ariz. 30, 31, 563 P.2d 285, 286 (1977) (“[A] defendant’s
right to be present at all stages of criminal proceedings . . . includes the right to be present
10
See also State v. Lawrence, 123 Ariz. 301, 307, 599 P.2d 754, 760 (1979) (defense
counsel’s presence when trial court answered questions of law from jury sufficient; any error
arising from defendant’s absence did not “affect[] any substantial constitutional rights”);
State v. Campbell, 146 Ariz. 415, 418, 706 P.2d 741, 744 (App. 1985) (counsel could
waive defendant’s right to be present during reading of testimony and answering of jury
questions, and any error subject to harmless error review); State v. Pawley, 123 Ariz. 387,
390, 599 P.2d 840, 843 (App. 1979) (when “defendant’s legal position was represented and
protected by the presence of counsel,” no personal waiver required and no error arose from
defendant’s absence); State v. Davis, 117 Ariz. 5, 7-8, 570 P.2d 776, 778-79 (App. 1977)
(although trial court erred in communicating with jury “without notice to the defense,” error
was waived by defendant’s failure to raise it in motion for new trial).
21
when portions of the record are repeated at the request of the jury during their
deliberations.”) (citations omitted); State v. Armenta, 112 Ariz. 352, 353, 541 P.2d 1154,
1155 (1975); State v. Sanchez, 130 Ariz. 295, 299, 635 P.2d 1217, 1221 (App. 1981)
(“[T]he reading of the testimony of a state’s witness to the jury in [the defendant’s] absence
violated his Sixth Amendment right to confrontation.”); see also State v. Robin, 112 Ariz.
467, 467, 543 P.2d 779, 779 (1975) (Confrontation Clause issue presented when jury asked
questions involving factual issues and trial judge answered from his notes and recollection
of relevant testimony). Again, however, neither federal nor Arizona law requires a
defendant’s personal waiver of the right to be present whenever a trial judge fields or
responds to a jury’s question, particularly when the alleged constitutional violation relates
solely to a defendant’s due process rights.
¶33 Although Swoopes repeatedly argues that the jury’s question dealt with a
“pivotal factual issue,” he does not argue, nor do we find, that he had a Confrontation
Clause right to be present when the trial judge answered the question. Judge Meehan did
not read testimony back to the jury or provide it with any factual information in the case.
See Perez, 115 Ariz. at 31, 563 P.2d at 286; Armenta, 112 Ariz. at 353, 541 P.2d at 1155;
Sanchez, 130 Ariz. at 299, 635 P.2d at 1221. Rather, he merely provided a legal answer to
the jurors’ question, responding in writing: “The statement [about which the jury asked wa]s
not admissible. Rely on your collective memories.” That answer, although arguably
suggesting that a statement might have existed, was consistent with the preliminary
22
instructions the trial judge had given the jury, that “[t]he only evidence that you are to
consider is testimony that comes off the witness stand while the witness is under oath or
other physical exhibits that may be admitted.” The judge’s response also conformed to the
final instructions that the jurors “must determine the facts only from the evidence produced
in Court” and that they should “disregard” inadmissible evidence. Cf. State v. Jeffrey, 203
Ariz. 111, ¶ 18, 50 P.3d 861, 865 (App. 2002) (“Juries are presumed to follow their
instructions.”). Thus, the trial judge’s answer did not provide the jury with factual
information, implicating the Confrontation Clause, but rather provided only legal
instruction.
¶34 Similarly, this is not a case in which “a personal confrontation occur[red]
between the court and the jury potentially touching upon the fundamental relationship
between an accused, the court, and the people who judge him.” State v. Pawley, 123 Ariz.
387, 390, 599 P.2d 840, 843 (App. 1979). In such a situation, “[f]airness requires that the
defendant be given the chance to attend, and possibly participate in the proceedings against
him before the jury; also important is the opportunity for the jury to observe the defendant
throughout the proceedings.” Id. Nor does this case involve a trial judge who actually
entered the jury room to communicate with jurors. See State v. Werring, 111 Ariz. 68, 523
P.2d 499 (1974); State v. Burnetts, 80 Ariz. 208, 295 P.2d 377 (1956). Arizona courts have
distinguished such occurrences from situations in which a trial judge merely answered jury
questions. See State v. Lawrence, 123 Ariz. 301, 305-06, 599 P.2d 754, 758-59 (1979);
23
Pawley, 123 Ariz. at 389-90, 599 P.2d at 842-43; State v. Davis, 117 Ariz. 5, 7-8, 570 P.2d
776, 778-79 (App. 1977). Nothing in the record here suggests that any personal interaction
occurred between the trial judge and the jury or that the jury would have had an opportunity
to observe Swoopes had he been present.
¶35 Considering all the facts and circumstances surrounding the communications
here, as we must, we also cannot say Swoopes had any due process right to be present
absent a personal waiver by him. See Pawley, 123 Ariz. at 390, 599 P.2d at 843 (“The rule
requiring that a defendant be given an opportunity to be present [for communications with
jurors during deliberations] should not be mechanically applied to situations where the
rationale for his presence does not exist.”). Swoopes relies on several Ninth Circuit cases
for a contrary conclusion, but we find that reliance misplaced. As the state points out, one
of those cases, Bustamante v. Eyman, 456 F.2d 269 (9th Cir. 1972), was decided before the
Supreme Court’s pronouncements on this subject in Gagnon, 470 U.S. at 526, 105 S. Ct.
at 1484. We also do not read the Ninth Circuit cases as broadly as Swoopes urges and, in
any event, such authority is not controlling on Arizona courts. State v. Montano, 206 Ariz.
296, n.1, 77 P.3d 1246, 1247 n.1 (2003) (“We are not bound by the Ninth Circuit’s
interpretation of what the Constitution requires.”).
¶36 We note that in all three Ninth Circuit cases cited by Swoopes, the court
employed a harmless error analysis. See generally Bustamante, 456 F.2d at 274; United
States v. Rosales-Rodriguez, 289 F.3d 1106, 1109-10 (9th Cir. 2002); United States v.
24
Berger, 473 F.3d 1080, 1096 (9th Cir. 2007). In Bustamante, the court spoke broadly of
a defendant’s right “to be personally present in the courtroom at every stage of his trial.”
456 F.2d at 271. But it also noted that, although the proceedings in Bustamante’s case had
occurred “in the courtroom at a time when the most fundamental aspects of his trial took
place,” the Ninth Circuit had itself “refused to extend the right of presence to a conference
in chambers.” Id. at 273, citing Stein v. United States, 313 F.2d 518 (9th Cir. 1962). And,
in discussing whether Bustamante could waive his right to be present, the court relied
primarily on the fact that he was facing capital charges. Id. at 274. Thus, we cannot say
Bustamante required a personal waiver of the right to be present in a context such as that
presented here. Cf. Lawrence, 123 Ariz. at 306 n.1, 599 P.2d at 759 n.1 (noting and
distinguishing Ninth Circuit’s concern about the absence of defense counsel, uncertain tape
recordings of instructions, and a new judge).
¶37 Likewise, although the court again employed broad language in addressing the
right to be present in Rosales-Rodriguez, it did not require a personal waiver of that right.
289 F.3d 1109-11. And, in fact, the court noted that the presence of defendant’s counsel
would have been sufficient to cure the constitutional error relating to the delivery of a
supplementary jury instruction in the defendant’s absence. Id. at 1110.
¶38 Finally, in Berger, in which the judge held a private conference with the
jurors, apparently in the jury room, the Ninth Circuit stated, “communication between the
judge and jury outside of counsel’s presence, without a proper waiver, violates a defendant’s
25
right to due process of law.” 473 F.3d at 1095. That right, the court also stated, could only
be waived through a knowing, voluntary, and intelligent waiver. Id. Except arguably to the
extent that such a rule might be based upon the trial judge’s actual presence in the jury
room, we cannot agree. See Montano, 206 Ariz. at n.1, 77 P.3d at 1247 n.1. Such a broad,
unqualified rule is inconsistent with the Arizona and United States Supreme Court precedent
discussed earlier and, as such, we are compelled to reject it. See State v. Smyers, 207 Ariz.
314, n.4, 86 P.3d 370, 374 n.4 (2004) (“The courts of this state are bound by the decisions
of [the Arizona Supreme Court] and do not have the authority to modify or disregard [its]
rulings.”); State v. Sherrick, 98 Ariz. 46, 52, 402 P.2d 1, 5 (1965) (state courts bound by
decisions of United States Supreme Court interpreting federal Constitution).
¶39 In sum, Swoopes has not established that “the particular right alleged to have
been violated” is of “‘sufficient constitutional magnitude’ to require a knowing, voluntary
and intelligent waiver for purposes of Rule 32.2(a)(3).” Smith, 202 Ariz. 446, ¶ 10, 46 P.3d
at 1071, quoting former Rule 32.2(a)(3) cmt. The foregoing principles relating to a criminal
defendant’s right to attend all critical stages of the proceedings make clear to us that the
right at issue here is not “such ‘“an inherently personal right of fundamental importance”’
that it must be personally and expressly waived.” State v. Espinosa, 200 Ariz. 503, ¶ 8, 29
P.3d 278, 280 (App. 2001), quoting State v. Smith, 197 Ariz. 333, ¶ 13, 4 P.3d 388, 393
(App. 1999), quoting Winters v. Cook, 489 F.2d 174, 178 (5th Cir. 1973). Rather, the
alleged error relating to Judge Meehan’s response to the jury’s note falls squarely within the
26
following observation in the comment to Rule 32.2: “For most claims of trial error, the state
may simply show that the defendant did not raise the error at trial, on appeal, or in a
previous collateral proceeding, and that would be sufficient to show that the defendant has
waived the claim.” Thus, because the issue was not raised on appeal or in Swoopes’s first
Rule 32 proceeding, it is now precluded.11
VI.
¶40 Swoopes argued below that Judge Meehan’s “inaccurate answer to the jury’s
question . . . created fundamental error” that prejudiced him. In granting relief and ordering
a new trial, the trial court apparently embraced that argument by finding “the unfortunate
choice of wording in [Judge Meehan’s] note [to the jury] inured to the prejudice of
[Swoopes] and constituted fundamental error.” The trial court’s characterization of any
error here as fundamental, however, does not change the result. By granting relief on this
basis, the court implicitly found fundamental error to be tantamount to a claim of sufficient
constitutional magnitude for purposes of Rule 32.2. The court’s order suggests, too, that,
notwithstanding the rules of preclusion, fundamental error may be raised at any time and,
if found, compel relief in a successive post-conviction proceeding such as this.
11
As noted earlier, the trial court did not find sufficient support for Swoopes’s claim
that there had been an improper ex parte communication between Judge Meehan and the
jury. But even if Judge Meehan had responded to the jury’s note without first contacting or
consulting with Swoopes’s trial counsel (Addis), that would not change the result. At most,
that scenario might have constituted trial error but still would not implicate any right “of
sufficient constitutional magnitude to require personal waiver by the defendant.” Smith, 202
Ariz. 446, ¶ 12, 46 P.3d at 1071.
27
¶41 Nothing in Rule 32.2, the court comment thereto, or Smith can be read to
support this notion. Not all error that is fundamental involves the violation of a
constitutional right that can be waived only if the defendant personally does so knowingly,
voluntarily, and intelligently. See Espinosa, 200 Ariz. 503, ¶ 8, 29 P.3d at 280 (finding
claim that prosecutor had improperly withdrawn plea offer, violating due process rights and
Distribution of Powers Clause of Arizona Constitution, did “not implicate constitutional
rights of sufficient magnitude that they require a knowing, voluntary, and intelligent waiver
before preclusion applies”; constitutional rights allegedly implicated not personal and need
not be “personally and expressly waived”); see also State v. Ward, 211 Ariz. 158, ¶ 13, 118
P.3d 1122, 1126-27 (App. 2005) (“Although some constitutional rights may be waived
without actual knowledge of the right involved, the right to a jury trial is a fundamental right
and may not be waived without the defendant’s knowledge, and absent a voluntary and
intelligent waiver.”).
¶42 Although it is true that by failing to raise an issue in the trial court, a defendant
“forfeit[s] the right to obtain appellate relief unless [the defendant can] prove that
fundamental error occurred,” State v. Martinez, 210 Ariz. 578, n.2, 115 P.3d 618, 620 n.2
(2005), different principles come into play when Rule 32.2 is implicated. See, e.g.,
Espinosa, 200 Ariz. 503, ¶¶ 8, 10, 29 P.3d at 280, 280-81. Were we to find otherwise, an
exception to the rule of preclusion for fundamental error that does not implicate a personal,
constitutional right would swallow the rule. Moreover, if our supreme court had intended
28
that fundamental error be an exception to preclusion under Rule 32.2, the court presumably
would have expressly said so in the rule itself or the comment thereto.
¶43 In addition, any error here would not properly be characterized as
fundamental. Fundamental error is “‘error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such magnitude that
the defendant could not possibly have received a fair trial.’” State v. Henderson, 210 Ariz.
561, ¶ 19, 115 P.3d 601, 607 (2005), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d
980, 982 (1984). Although the trial judge’s response to the jury’s note arguably suggested
Linda had made a statement before the physical lineup, the judge’s response—“The
statement is not admissible. Rely on your collective memories”—did not tell the jury what
the statement was. In other words, the judge did not tell the jury that the purported
statement “of a blemish” was that Linda had seen one before the lineup.12 Additionally, we
presume jurors follow the instructions given to them. State v. Prince, 204 Ariz. 156, ¶ 9,
61 P.3d 450, 452 (2003). And the judge in essence instructed the jury not to consider any
such statement when he responded to the question.
12
We acknowledge the statement by one of the jurors, provided in support of the
petition for post-conviction relief, that the judge’s answer suggested that victim Linda D. had
mentioned before the physical lineup having seen a blemish on the suspect’s face, and that
otherwise the juror would have voted to find Swoopes not guilty. Aside from the fact that
it is improper to “inquire[] into the subjective motives or mental processes which led a juror
to assent or dissent from the verdict,” Rule 24.1(d), Ariz. R. Crim. P., 17 A.R.S.; State v.
Covington, 136 Ariz. 393, 396-97, 666 P.2d 493, 496-97 (App. 1983), the statement was
submitted to support a claim that is precluded.
29
¶44 Finally, as we previously noted, the issue of identity was litigated extensively,
both before and during trial. Swoopes filed a motion to suppress any identification of him
by Mark, Randy, and Linda, claiming that the out-of-court identification process had been
unduly suggestive because of Mark’s and Randy’s observation of him during the other trial
and that this tainted Linda’s identification of him before trial and any in-court identification
of him by any of the victims. The judge denied the motion after a hearing held pursuant to
State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), and Swoopes challenged that
ruling on appeal. Linda testified at trial that when she had identified Swoopes in the live
lineup, she did not know that Randy or Mark had already seen and identified him, nor did
she know they had been told not to tell her they had identified Swoopes before the police
presented her with the lineup. Linda identified Swoopes at trial and agreed when the
prosecutor asked whether the person who had done the things she had described had a scar
or blemish. The witnesses were thoroughly examined and cross-examined about the
identification of Swoopes as the perpetrator. Indeed, Linda acknowledged that she had told
the police detective who had interviewed her at the hospital that the gunman did not have
a scar or blemish on his face. And she conceded she had been unable to pick Swoopes out
of a photographic lineup. Defense counsel cross-examined Linda about her statement that
Randy had never told her about having identified Swoopes during the trial in the other case
before Linda picked him out of the live lineup.
30
¶45 In addition, as noted earlier, the trial court was not convinced there had been
an improper, ex parte communication by the judge, nor are we. In any event, that claim, too,
relates to trial error, is not fundamental, and is precluded. On the record before us, even
assuming any error occurred, we cannot say the error was fundamental.
VII.
¶46 In his response to the state’s petition for review, Swoopes suggests the trial
court did not decide his related claim of actual innocence made pursuant to Rule 32.1(h),
which is excepted from the rule of preclusion. See Ariz. R. Crim. P. 32.2(b). Swoopes
argues that he raised a colorable claim for relief under that subsection of the rule and is
entitled, at the very least, to an evidentiary hearing on it. We disagree. The trial court
rejected post-conviction relief on this ground when it expressly “denied . . . all of
[Swoopes’s] claims” other than those directly relating to Judge Meehan’s response to the
jury’s note. And Swoopes has not established that trial error relating to his identification
by witnesses, the trial judge’s allegedly improper answer to the jury, or the prosecutor’s
allegedly incorrect and improper argument related to that identification amounts to a claim
of actual innocence. This is not “clear and convincing evidence . . . that no reasonable
fact-finder would have found defendant guilty of the underlying offense beyond a reasonable
doubt.” Ariz. R. Crim. P. 32.1(h).
¶47 In his cross-petition for review, Swoopes contends the trial court abused its
discretion in denying relief on his claims that the state had withheld exculpatory evidence
31
and improperly destroyed evidence over a decade after his trial. Swoopes also reiterates the
claim of actual innocence, which we discussed above. The trial court addressed these
additional claims in a manner permitting review by this court, and its resolution of those
claims is correct. Therefore, seeing no purpose in rehashing the court’s order here, we adopt
its ruling. See State v. Whipple, 177 Ariz. 272, 274, 866 P.2d 1358, 1360 (App. 1993).
Moreover, although the trial court rejected these claims on their merits, they were waived
by Swoopes’s failure to raise them on appeal or in his initial post-conviction proceeding, and
they are precluded. See Ariz. R. Crim. P. 32.2(a). Finally, Swoopes did not establish the
evidence in question was newly discovered as contemplated by Rule 32.1(e) or would
support a claim of actual innocence under Rule 32.1(h).
VIII.
¶48 The state’s petition for review is granted. We grant relief on that petition by
vacating the trial court’s order granting Swoopes a new trial. Swoopes’s cross-petition for
review is granted as well, but because we conclude the trial court did not abuse its discretion
in denying relief on the cross-petition, we deny relief.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________
32
JOSEPH W. HOWARD, Presiding Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
33