State v. Martin

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

CHARLIE RUSSELL MARTIN, Petitioner.

No. 1 CA-CR 21-0559 PRPC
FILED 7-26-2022

Appeal from the Superior Court in Maricopa County
No. CR2014-105544-001
No. CR2016-112365-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Faith C. Klepper
Counsel for Respondent

Ballecer & Segal LLP, Phoenix
By Natalee E. Segal
Counsel for Petitioner

STATE v. MARTIN
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 Charlie Russell Martin petitions this court to review the
summary dismissal of his petition for post-conviction relief (“PCR”). We
have considered the petition for review and, for the reasons stated, grant
review but deny relief.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 In December 2015, Brittany Austin was stopped at a red light
when Martin drove into the back of her van, forcing it into the car in front
of her. Austin checked on her children in the back seat, then exited the van
and checked on the car’s driver in front of her. She then turned and saw
Martin exit his vehicle, look at her, and take off on foot. Another person,
Christian Sevilla, witnessed the accident from a nearby parking lot and
watched Martin exit his vehicle and leave the scene.

¶3 When police officers arrived, Austin provided them with a
description of Martin. Based on her description, the officers located Martin
nearby and eventually handcuffed him. One officer observed that Martin
smelled of alcohol, slurred his speech, and had “a very unsteady gait.”

¶4 Several officers remained near Martin while one officer
brought Sevilla over for identification. Sevilla identified Martin as the
driver. The officer then escorted Sevilla away from the scene and returned
with Austin. The officer clarified for Austin that the man in handcuffs “may
or may not be the person,” then asked her if that was “the person [she]
observed leaving the accident.” She responded in the affirmative twice
before confirming that she was “100% positive.” She also confirmed that
she saw “him actually . . . get out of the car.” When asked if she needed to

1 We view the facts in the light most favorable to upholding the
verdict. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

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Decision of the Court

get a better view of the man or if she was confident in her identification, she
replied, “No, that’s him for sure.”

¶5 After the two identifications, the police arrested Martin for
driving under the influence (“DUI”) and leaving the scene of an accident.
They transported him to the police station to draw Martin’s blood and the
analysis determined his blood alcohol concentration was .256.

¶6 The State charged Martin with two counts of Aggravated
DUI, both class 4 felonies. The case proceeded to trial and ended with a
hung jury. The State then retried Martin. During the retrial, Austin testified
that she saw a man alone in the car driving behind her before the accident.
She testified that, after the accident, she saw the same man sitting in his car
before he stepped out and left the scene. She also testified that she identified
the driver at the scene with the police. She then identified the driver in court
as Martin.

¶7 Sevilla testified that he saw the accident from a nearby
parking lot. He testified that he was facing the driver’s side of the vehicle
when he saw a car rear-end a van at a red light, and the man driving the car
exited his vehicle and began walking away. He added that he only saw one
person exit the car. He testified that he identified the car’s driver to police.
The jury viewed body-camera footage of the witness identifications.

¶8 In his defense, Martin argued he was not the vehicle’s driver.
He testified that, on the day of the accident, his sister dropped him off at a
bar, where he drank liquor and beer. He claimed a woman named Kiersten,
who he had been seeing for a few weeks, borrowed his sister’s car and
drove to the bar to meet him. He testified that Kiersten later drove them to
a restaurant, where they “had a couple more drinks.” He stated that after
they left the restaurant, Kiersten got into the accident.

¶9 Martin testified that just after the accident, Kiersten exited the
vehicle and fled. He claimed the passenger-side door would not open, so
he slid over the console, exited the car through the driver-side door, and
began searching the area for Kiersten while yelling out for her. He claimed
that once the police located him, he denied being the driver and asked if
they knew Kiersten’s whereabouts. An officer, however, testified that
Martin at first denied being involved in an accident and failed to mention
anyone named Kiersten until after he was arrested and placed in the patrol
car.

¶10 During closing arguments, Martin conceded that he was
drinking before the accident and exited the vehicle through the driver-side

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door after the accident. But he emphasized that the only element in dispute
was whether Martin was driving. He noted that only Austin testified that
she saw Martin driving, and he argued that the witnesses’ testimonies were
not credible.

¶11 The jury ultimately found Martin guilty on both counts. He
waived his right to a jury trial on aggravating circumstances and admitted
he was on felony probation at the time of the offenses.2 The court sentenced
Martin to 11 years’ imprisonment on each count, each running concurrently
with the other. The court revoked Martin’s felony probation and imposed a
2.5-year sentence for that offense, to run consecutively with the DUI
sentences. Martin appealed, and we affirmed the convictions and sentences
on direct appeal. State v. Martin, Nos. 1 CA-CR 17-0125 and 1 CA-CR
17-0126 (Consolidated), 2018 WL 4585959 (Ariz. App. Sept. 25, 2018).

¶12 Martin then filed a PCR petition, raising multiple claims of
ineffective assistance of trial counsel. He claimed counsel failed to request
a hearing or jury instruction under State v. Dessureault, 104 Ariz. 380 (1969).
And he claimed counsel failed to object to the State’s body-camera video
admission and obtain an expert in eyewitness identification.

¶13 The superior court rejected the Dessureault claim, finding that
it was “a reasonable trial strategy” to decline to request a Dessureault
hearing “given the defendant testified . . . that he exited the car at issue, and
it was his sister’s car.” The court added that “it is a reasonable trial strategy
when one says they were at a location not to challenge identification of them
at the location.” The court also rejected the body-camera claim, finding that
the video was “properly introduced as relevant to the issues of impairment,
identification, and for the jury to compare to the defendant’s statements
made at trial.” Finally, the court rejected the expert-witness claim, noting
that calling an expert is not required in every case, and it would have had a
minimal impact given Martin’s testimony. Thus, the court dismissed the
petition.

¶14 Martin petitioned this court for review. We have jurisdiction
under A.R.S. § 13-4239(C) and Arizona Rule of Criminal Procedure
32.16(a)(1).

2 See Superior Court in Maricopa County No. CR2014-105544-001.

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DISCUSSION

¶15 We will not disturb the superior court’s ruling on a PCR
petition absent an abuse of discretion or error of law. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012); State v. Macias, 249 Ariz. 335, 340, ¶ 16 (App.
2020). We review the court’s legal conclusions de novo. State v. Pandeli, 242
Ariz. 175, 180, ¶ 4 (2017).

¶16 Martin asserts that his trial counsel was ineffective. A
defendant is constitutionally entitled to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984). To prove ineffective
assistance, a defendant must prove that counsel failed to meet an objective
standard of reasonableness, which prejudiced the defendant. Id. at 687–88.
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.” Id. at 695–96. But “disagreements in trial strategy will not
support a claim of ineffective assistance of counsel, provided the challenged
conduct had some reasoned basis.” State v. Vickers, 180 Ariz. 521, 526 (1994)
(quoting State v. Nirschel, 155 Ariz. 206, 208 (1987)).

¶17 On review, Martin asserts the superior court (1) misapplied
the law when ruling on the Dessureault and body-camera claims of
ineffective assistance in the PCR petition and (2) abused its discretion by
denying the petition without a hearing.

¶18 Martin contends the superior court improperly analyzed the
Dessureault claim for ineffective assistance because it “fail[ed] to
understand the identification issue as one of whether Martin was driving.”
He claims the one-on-one witness identifications conducted by police at the
scene of the accident were unduly suggestive because the witnesses were
shown Martin while he was handcuffed, sitting on the curb, and
surrounded by police officers with police lights flashing. In his petition to
the superior court, he asserted that reasonable counsel would have objected
to this identification procedure under Dessureault, which safeguards against
unduly suggestive pretrial identification procedures. See 104 Ariz. at
383–84.

¶19 The superior court rejected this claim, finding that counsel’s
choice not to request a Dessureault hearing or jury instruction was a
reasonable trial strategy because Martin’s defense did not turn on his
identification at the scene. We agree.

¶20 Contrary to Martin’s contention that the superior court
“fail[ed] to understand the identification issue as one of whether Martin

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was driving,” the court understood that “the trial strategy was not to
contest he was the person in the car, but that he was not the only person in
the car and not the driver.” Martin testified that he exited the vehicle after
the accident. Thus, it would be illogical to challenge the witnesses’
identifications of Martin as the man they saw exiting the vehicle. And
Martin fails to show a reasonable probability that the trial outcome would
have been different had a Dessureault hearing taken place or jury instruction
given.

¶21 Martin also claims his counsel was ineffective for failing to
challenge the admittance of the body-camera footage. He contends that it
“was essentially the recorded version of the one-on-one identification at the
scene of the accident” and argues that because “the identification itself was
unduly suggestive, . . . showing it to the jury cannot be allowed.” But as
discussed, it was not unreasonable for counsel to decline to object to the
identification itself. Likewise, it was not unreasonable to decline to object to
the body-camera video. The video showed an officer asking Austin if the
man the police had detained was “the person [she] observed leaving the
accident,” to which she answered in the affirmative. This evidence tracks
Martin’s admission that he exited the vehicle and walked away after the
accident.

¶22 But Martin fails to prove that he would have prevailed in a
Dessureault hearing. Even if a pretrial identification is unduly suggestive, it
may still be admissible if it is otherwise reliable. State v. Rojo-Valenzuela, 235
Ariz. 617, 620, ¶ 9 (App. 2014). Thus, even if Martin could show that
Sevilla’s identification was unduly suggestive, he fails to show that the
identification was unreliable, given that Sevilla witnessed the accident from
a nearby parking lot and was quick to provide the police a description of
the accident consistent with Austin’s description. See id. ¶ 10 (Reliability
factors “include the opportunity of the witness to view the criminal at the
time of the crime, . . . the level of certainty demonstrated by the witness at
the confrontation, and the length of time between the crime and the
confrontation.” (quoting Neil v. Biggers, 409 U.S. 188, 199–200 (1972)). Thus,
he has not shown a reasonable probability that he would have prevailed in
a Dessureault hearing and then at trial.

¶23 Finally, Martin argues that he raised a colorable claim with
material issues of fact, and thus the superior court erred by denying his
petition without a hearing. Martin’s claims do not turn on issues of fact and
thus do not warrant an evidentiary hearing. The court did not abuse its
discretion.

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STATE v. MARTIN
Decision of the Court

CONCLUSION

¶24 We affirm.

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

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