State v. Reed

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

GEORGE M. REED, Petitioner.

No. 1 CA-CR 23-0323 PRPC

FILED 11-19-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2016-005718-001
The Honorable Kerstin G. LeMaire, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Respondent

George M. Reed, San Luis
Petitioner
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MEMORANDUM DECISION

Presiding Judge Brian Y. Furuya delivered the decision of the Court, in
which Judge James B. Morse Jr. and Judge David D. Weinzweig joined.

F U R U Y A, Judge:

¶1 Petitioner George Reed petitions for review of the summary
dismissal of his first petition for post-conviction relief. We have considered
the petition for review and the State’s response. For the reasons stated, we
grant review and deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 In 2016, undercover detectives utilized “E.F.” as a
“middleman” to procure illegal drugs from persons selling those drugs at
an apartment complex. E.F. was not a confidential informant. Detectives
eventually asked E.F. to help them buy heroin from Reed, who shared an
apartment with him. E.F. contacted Reed by phone and arranged for the
sale to take place at a gas station. E.F. and two detectives drove to the gas
station together where one of the detectives gave E.F. $175 to purchase the
heroin. When Reed arrived at the gas station in a van, E.F. walked from the
detectives’ vehicle to the van and got in the front passenger seat. Shortly
after, E.F. returned to the detectives’ vehicle with a plastic bag containing
heroin.

¶3 The State charged Reed with two counts of sale or
transportation of narcotic drugs, a Class 2 felony, one count for the sale at
the gas station and one count for a prior sale at the apartment complex. The
State alleged both principal and accomplice liability for each count. A jury
found Reed guilty of sale or transportation of narcotic drugs for the sale at
the gas station but acquitted Reed of the count regarding the prior sale. The
trial court sentenced Reed as a repetitive offender on felony release at the
time of the offense to a total of 14 years’ imprisonment, Arizona Revised
Statute (“A.R.S.”) §§ 13-703(J), -708(D), and we affirmed his conviction and
sentence on direct appeal, State v. Reed, No. 1 CA-CR 19-0701, 2021 WL
1200706 (Ariz. App. Mar. 30, 2021).

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¶4 Reed then initiated post-conviction relief proceedings and
filed a pro se petition for post-conviction relief after his post-conviction
relief counsel was unable to find any colorable claims for relief. The trial
court summarily dismissed the petition and Reed now seeks review. We
have jurisdiction pursuant to Arizona Rule of Criminal Procedure 32.16 and
A.R.S. § 13-4239(C).

DISCUSSION

¶5 In his petition for review, Reed argues (1) his trial counsel was
ineffective; (2) newly discovered material facts would probably have
changed the verdict; and (3) these issues for review constitute cumulative
error.

I. Reed Failed to Establish Ineffective Assistance of Counsel.

¶6 To state a colorable claim of ineffective assistance of counsel,
a defendant must show 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 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To show prejudice, 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.” Strickland,
466 U.S. at 694.

¶7 When reviewing claims of ineffective assistance of counsel,
we owe deference to both the defendant’s counsel and the trial court. Dunn
v. Reeves, 594 U.S. 731, 739 (2021). There is a strong presumption that the
actions of counsel were sound trial strategy under the circumstances
present at that time. State v. Stone, 151 Ariz. 455, 461 (App. 1986). “[E]ven if
there is reason to think that counsel’s conduct ‘was far from exemplary,’ a
court still may not grant relief if ‘[t]he record does not reveal’ that counsel
took an approach that no competent lawyer would have chosen.” Dunn, 594
U.S. at 739 (quoting Burt v. Titlow, 571 U.S. 12, 23–24 (2013)).

A. Counsel’s Cross-Examination of Two Detectives Did Not
Fall Below Standards.

¶8 Reed first argues his trial counsel was ineffective when
counsel failed to adequately cross-examine and/or impeach the two
undercover detectives who participated in the sale at the gas station. Reed
alleges his counsel’s pretrial interviews of the two detectives revealed
discrepancies regarding whether E.F. went inside the store at the gas station
prior to Reed’s arrival. Reed argues counsel could have used these alleged

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discrepancies during cross-examination of the detectives to show that E.F.
could have purchased the heroin from an unidentified person in the store
or elsewhere while out of the detectives’ view prior to Reed’s arrival.

¶9 We deny relief because Reed has failed to present a colorable
claim for relief. The determination of how to cross-examine a witness is a
matter of trial strategy. See Stone, 151 Ariz. at 461. “Simply disagreeing with
strategy decisions cannot support a determination that representation was
inadequate.” State v. Pandeli, 242 Ariz. 175, 181 ¶ 8 (2017). This is because
“[d]efense 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). Cross-examination of the detectives in a manner that did
not seek to raise the speculative proposition that E.F. purchased heroin
from an unidentified person while momentarily out of sight of the
detectives was a viable trial strategy that did not fall below objectively
reasonable standards.

B. Counsel Was Not Ineffective in Seeking the Willits
Instruction.

¶10 Reed next argues his trial counsel was ineffective when
counsel failed to file a motion to reconsider the trial court’s denial of Reed’s
request for an instruction under State v. Willits, 96 Ariz. 184 (1964). “A
Willits instruction is appropriate when the state destroys or loses evidence
potentially helpful to the defendant.” State v. Lopez, 163 Ariz. 108, 113 (1990).
Here, counsel sought a Willits instruction because the two cell phones the
detectives used during their undercover work, at least one of which
contained texts with E.F., were destroyed prior to trial and the relevant texts
on those phones were not otherwise preserved.

¶11 We deny relief on this issue as well. Counsel requested a
Willits instruction and the trial court denied the request. Simply disagreeing
with counsel’s decision to not file a motion to reconsider the court’s ruling
is not sufficient to present a colorable claim that counsel’s actions fell below
objectively reasonable standards.

C. Counsel Was Not Ineffective in Filing the Motion to
Preclude Audio Recordings of the Detectives and E.F.

¶12 Reed next argues his trial counsel was ineffective because
counsel was unsuccessful in precluding admission of the audio recording
contained in trial Exhibit 18. The recording consisted of the interactions
between E.F. and the two detectives on the day of the sale at the gas station.

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The recording included all their conversations that occurred before, during,
and after the sale.

¶13 We deny relief because Reed has again failed to present a
colorable claim for relief. Reed’s counsel filed a motion to preclude the
admission of the recording. The trial court took the motion under
advisement because the court was concerned the State would not be able to
establish sufficient foundation to admit the recording at trial. When the
State later moved to admit the recording during trial, Reed’s counsel
objected based on the grounds urged in the motion to preclude. The trial
court overruled counsel’s objection. Merely asserting that counsel should
have done a better job when counsel filed the motion to preclude the
recording and when counsel later objected to the admission of the recording
is insufficient to present a colorable claim of ineffective assistance of
counsel.

D. Counsel Was Not Ineffective for Failing to Have Exhibit 18
“Analyzed and Enhanced.”

¶14 Reed further argues his trial counsel was ineffective when
counsel failed to have the audio recording contained in Exhibit 18
“analyzed and enhanced.” Reed argues counsel should have had the exhibit
“analyzed and enhanced to determine its evidentiary value for the
defense.” Reed further argues analysis would have shown the
conversations were poorly recorded and inaudible, possibly
“intentionally,” throughout the recording.

¶15 We deny relief on this issue as well. The State played Exhibit
18 for the jury. The deficiencies of the recording would have been readily
apparent to everyone at trial. Further, Reed’s counsel had no reason to take
action that risked doing nothing more than improving the quality and
impact of the State’s evidence against Reed solely to Reed’s detriment. An
attorney need not take action that might harm the defendant’s case.
Harrington v. Richter, 562 U.S. 86, 108 (2011). Counsel’s efforts to preclude
the admission of Exhibit 18 rather than attempt to enhance the quality of
the recording was a viable trial strategy. Reed has failed to present a
colorable claim that counsel was ineffective for failing to analyze and
enhance Exhibit 18.

II. There Are No Newly Discovered Material Facts in Exhibit 18.

¶16 In a separate claim related to Exhibit 18, Reed asserts he has
obtained newly discovered material facts that would likely have altered the
verdict if admitted into evidence at trial. Specifically, Reed alleges that in

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light of his trial counsel’s failure to have Exhibit 18 analyzed and enhanced,
Reed personally had the audio recording in Exhibit 18 analyzed and
enhanced. Reed does not explain how or who “analyzed and enhanced” the
recording or how the transcript resulting from these efforts accurately
identified which of three persons were speaking. Reed argues this new
transcript reveals for the first time that one of the detectives drank from a
can of beer during the sale at the gas station; that the same detective could
not see inside Reed’s van and, therefore, could not see any transaction
between E.F. and Reed; and that the second detective was not always in the
presence of the first detective while they were at the gas station.

¶17 For a defendant to obtain post-conviction relief based on
newly discovered material facts:

(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 the court’s attention;

(3) The evidence must not simply be cumulative or impeaching;

(4) The evidence must be relevant to the case;

(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 (1989); see Ariz. R. Crim. P. 32.1(e).

¶18 Here, Exhibit 18 and its contents are not newly discovered
material facts. Reed has done nothing more than have someone else prepare
a new transcript based on that unknown person’s interpretation of the
recording. Further, a review of the recording itself shows that all the “new”
information Reed identifies can be heard in Exhibit 18 as admitted at trial.

III. Cumulative Error Is Inapplicable.

¶19 As the final issue on review, Reed argues the above claims
constitute cumulative error that rises to a level that entitles him to post-
conviction relief. Generally, Arizona does not recognize the doctrine of
cumulative error. State v. Hughes, 193 Ariz. 72, 78–79 ¶ 25 (1998). The only
exception is cumulative error involving prosecutorial misconduct, which is
not implicated here. Id. at 79 ¶ 27.

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CONCLUSION

¶20 For the above reasons, we grant review and deny relief.

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

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