State v. Jordan

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Petitioner,

v.

WILLIAM JORDAN, Respondent.

No. 1 CA-CR 21-0538 PRPC
FILED 6-9-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR201680129
The Honorable John D. Napper, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By George D. Rodriguez
Counsel for Petitioner

M. Alex Harris P.C., Chino Valley
By M. Alex Harris
Counsel for Respondent

STATE v. JORDAN
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.

M c M U R D I E, Judge:

¶1 The State seeks review of the superior court’s order granting
William Jordan post-conviction relief (“PCR”). The court vacated Jordan’s
convictions and sentences and ordered a new trial. Finding the court did
not abuse its discretion, we grant review but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 On an evening in February 2014, two witnesses drove by a
vehicle parked off Fossil Creek Road in Yavapai County. They saw Susan,1
Jordan’s fiancée, urinating by the passenger’s side of the vehicle, and
another person in the driver’s seat, which one witness identified as male.
The witnesses later pulled over to read a sign describing a site. Before they
proceeded, they saw the vehicle drive past them. The witnesses caught up
to the vehicle as it fishtailed and rolled down the mountainside. They
pulled over to check on the occupants. When they reached the vehicle, they
found Jordan holding Susan, who was seriously injured. One of the
witnesses called 9-1-1, but Susan had died when the paramedics arrived.
Neither witness saw who drove the vehicle during the accident.

¶3 Officers arrived at the crash site and located Susan’s body and
Jordan, who had been placed in an ambulance. The parties stipulated that
chemical analysis showed Jordan’s blood-alcohol content at .134 percent
and Susan’s at .19 percent.

¶4 Officers did not attempt a formal accident reconstruction.
They did not measure the distance between the roadway’s edge and the
vehicle’s final resting place. One officer, about Jordan’s height, sat in the
driver’s seat without having to adjust it. They later moved the seat without
marking its original position, relying instead on a picture of the officer in
the seat.

1 We use a pseudonym to protect the identity of the victim.

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STATE v. JORDAN
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¶5 The two witnesses did not tell law enforcement that they saw
the vehicle with a male in the driver’s seat until the summer of 2015, and
law enforcement did not arrest Jordan until February 2016. When the
officers questioned Jordan, he said he remembered little of the accident. To
obtain a confession, the officers gave Jordan false information, including
that the two witnesses who saw him in the driver’s seat later saw him
driving the vehicle, Susan had a seatbelt injury suggesting she was the
passenger, and they collected the DNA of two individuals from the steering
wheel. At first, Jordan maintained he did not drive the vehicle, but after an
officer said he wanted Jordan’s “side of the story” and suggested Jordan
had driven because Susan was too intoxicated to drive, Jordan appeared to
confirm the officer’s version of events. Without saying he had driven the
vehicle, he said he had been lying about the crash, and it was his fault Susan
died.

¶6 In March 2016, the State charged Jordan with eight felonies:
one count of manslaughter (class 2), six counts of aggravated DUI (class 4),
and one count of criminal damage (class 5). Two counts of aggravated DUI
were later dismissed.

¶7 Jordan’s privately retained trial counsel had handled
car-accident cases, but those cases did not go to trial, and this was his first
vehicular manslaughter case. Trial counsel had hired experts before, but not
an accident reconstructionist. Counsel did not retain an accident
reconstructionist for Jordan’s case. Thus, counsel did not have an expert
review the evidence to prepare to cross-examine the State’s witnesses or
offer trial testimony.

¶8 At the trial, the State introduced testimony from the two
witnesses who saw the vehicle before and after the accident, the officers
who investigated the scene, and the officers who arrested Jordan. The
State’s forensic expert estimated that Jordan’s blood-alcohol level was
between .16 and .22 percent during the accident. Based on Susan’s injuries,
the pathologist testified that she appeared to have catapulted out of the
vehicle because she had several injuries consistent with having been
ejected, and there was no blood transfer within the vehicle. The pathologist
concluded that the victim was likely in the passenger’s seat during the crash
because the passenger’s side of the vehicle was crushed thus allowing her
to be catapulted from the vehicle. But the pathologist testified that she could
not say for certain that Susan was not ejected through an open rear window.
The pathologist also testified that a person sitting in the passenger seat
could not have escaped the accident with only minor injuries no matter
when the individual was ejected.

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STATE v. JORDAN
Decision of the Court

¶9 Trial counsel’s cross-examination led officers to admit their
limited knowledge of how the crash occurred, the cause of Susan’s injuries,
or where Jordan and Susan were seated. The jury convicted Jordan on all
counts. The court sentenced him to concurrent terms, the longest of which
was 17 years.

¶10 Jordan appealed his convictions and sentences. On appeal, he
argued there was insufficient evidence that he was driving the vehicle
during the accident in part because the State did not use an accident
reconstructionist. State v. Jordan, No. 1 CA-CR 17-0359, 2018 WL 1598912, at
*1, ¶ 6, *3, ¶ 14 (Ariz. App. Apr. 3, 2018). We rejected the argument and
affirmed. Id. at *3, ¶ 14, *4, ¶ 23.

¶11 Jordan petitioned for post-conviction relief, arguing
ineffective assistance of trial counsel. To support his claim, Jordan retained
an accident reconstructionist. The accident reconstructionist submitted a
preliminary assessment concluding that Jordan was most likely the
passenger. As a result, the court granted a hearing on Jordan’s claims.

¶12 At the hearing, Jordan’s counsel testified that his trial strategy
was to point out the lack of physical evidence of Jordan’s driving. And he
testified that he thought it would be futile to investigate the accident site
because of its changed condition by the time he was involved in the case
and that such an inquiry may conflict with his theory that the State lacked
reliable information based on its investigation.

¶13 Jordan’s mother testified that trial counsel had concluded that
an accident reconstructionist would be necessary for his case and explained
that more funds would be required to retain the expert. Trial counsel
admitted that he may not have explained to Jordan the advantages and
disadvantages of retaining an accident reconstructionist but recalled that he
had cautioned Jordan about the cost. Counsel testified that he did not think
he told Jordan that he could receive funds from the court to hire the expert.

¶14 Trial counsel admitted that he did not inquire how to hire an
expert in Yavapai County and was unaware that an indigent defendant
could retain an expert without notifying the State. The court noted that it
was unnecessary to inform the State when obtaining funds for an accident
reconstruction expert in Yavapai County and commented that trial counsel
did not know that Yavapai County procedure would allow him to retain an
expert without the state’s knowledge.

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STATE v. JORDAN
Decision of the Court

¶15 The court granted PCR based on ineffective assistance of
counsel. The State petitioned for review. We have jurisdiction under A.R.S.
§ 13-4239(C) and Arizona Rule of Criminal Procedure 32.16(a)(1).

DISCUSSION

¶16 A defendant convicted in violation of the United States or
Arizona Constitutions has a right to PCR. Ariz. R. Crim. P. 32.1(a). A
defendant is constitutionally entitled to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). To show ineffective
assistance, a defendant must prove that counsel failed to meet an objective
standard of reasonableness, which prejudiced the defendant. Id. at 687–88.
The State only argues that Jordan failed to prove counsel did not meet an
objective standard of reasonableness, so we only consider that issue. See
State v. Carver, 160 Ariz. 167, 175 (1989) (An appellant must present
significant arguments, supported by authority, setting forth an appellant’s
position on the issues raised or the claim is abandoned and waived.).

¶17 We evaluate counsel’s reasonableness by examining the
“practice and expectations of the legal community, and ask[], in light of all
the circumstances, whether counsel’s performance was reasonable under
prevailing professional norms.” State v. Bigger, 251 Ariz. 402, 407, ¶ 10
(2021) (quoting State v. Pandeli, 242 Ariz. 175, 180, ¶ 5 (2017)). If the inquiry
concerns counsel’s defense strategy, “[w]e presume counsel acted properly
unless a defendant can show that ‘counsel’s decision was not a tactical one
but, rather, revealed ineptitude, inexperience or lack of preparation.’” Id.
(quoting State v. Goswick, 142 Ariz. 582, 586 (1984)). The foundational
inquiry is whether counsel had a reasonable basis for the decision. Id. at
¶ 11. In general, the decision to hire an expert falls within the realm of trial
strategy. State v. Denz, 232 Ariz. 441, 445, ¶ 11 (App. 2013). And in some
cases, avoiding a “battle of experts” may constitute a sound trial strategy.
Id. But counsel must engage in an adequate investigation of possible
defenses unless a reasonable strategic decision renders a particular
investigation unnecessary. Id.

¶18 In Denz, we reviewed a similar claim of ineffective assistance.
232 Ariz. at 442–43, ¶¶ 1–5. There, trial counsel declined to consult an
independent medical expert even though the State introduced expert
testimony supporting allegations that the defendant caused a child’s
injuries. Id. at 443, ¶¶ 3–4. In his PCR petition, Denz asserted ineffective
assistance of counsel. Denz provided an affidavit by a forensic pathologist
who attested that the victim’s injuries suggested a fall rather than a blow.
Id. at 443, ¶ 4. At the PCR hearing, the trial counsel, who had limited

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STATE v. JORDAN
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experience with medical testimony or child abuse cases, described a defense
strategy of discrediting the prosecution’s expert testimony as speculative.
Id. at 444, ¶¶ 9, 13. Trial counsel expressed trepidation that a retained expert
might be discredited at trial. Moreover, introducing more expert testimony
would hurt the defendant’s case by highlighting “the mode of injury.” Id.
at 444, ¶ 9. But the trial counsel admitted that he did not consult a medical
expert. And if he had obtained an expert opinion like that in the defendant’s
petition, “he would have presented the testimony.” Id. We noted that
counsel acknowledged he could see no downside to consulting an expert
before trial. We concluded, “despite its strategic gloss, counsel’s decision to
not consult with an expert before settling on a defense strategy [was not] a
reasoned decision [and] therefore fell below prevailing professional
norms.” Id. at 446, ¶ 19.

¶19 Like the attorney in Denz, Jordan’s trial counsel failed to
consult an expert before developing his trial strategy. This failure precluded
him from determining how much an accident reconstructionist could infer
from the available evidence or how favorable the testimony might be even
if the State obtained a rebuttal accident reconstructionist.

¶20 Trial counsel knew that Jordan could not afford an expert but
did not request indigent funding. Trial counsel claimed that he did not seek
funding because he thought the State would have been put on notice and
retained an expert. Such an excuse does not withstand scrutiny and falls
below professional norms. When this trial occurred, Rule 15.9 stated that an
indigent defendant may apply to have an expert appointed at the county’s
expense and that, upon showing the need for confidentiality, the request
may be made ex parte.2 See State v. VanWinkle, 230 Ariz. 387, 391, ¶ 11 (2012)
(“[I]f VanWinkle was concerned about disclosing matters of trial strategy or
work product, he could have requested an ex parte hearing [under Ariz. R.
Crim. P. 15.9(b)]”) (emphasis added). In addition, a defendant need not
ordinarily disclose a mere consultation with an expert. See Ariz. R. Crim. P.
15.2(c)(2). Trial counsel’s belief that the court would not permit an ex parte
proceeding to obtain expert funding appears to be due to inexperience with
criminal practice or caselaw.

¶21 The State argues the court improperly narrowed the
community standard to the county level by considering trial counsel’s lack
of knowledge about Yavapai County’s procedural rules. We disagree.
Although the superior court referenced Yavapai County procedure, it also

2 Rule 15.9 was abrogated effective January 1, 2018.

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STATE v. JORDAN
Decision of the Court

noted that the Arizona Rules of Criminal Procedure did not support trial
counsel’s concerns about revealing a trial strategy to the State. The court
thus did not err.

CONCLUSION

¶22 We grant review but deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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