State v. McKenzie

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOE MCKENZIE, Petitioner.

No. 1 CA-CR 23-0377 PRPC
FILED 06-27-2024

Petition for Review from the Superior Court in Maricopa County
No. CR2017-141324-001
The Honorable Katherine Cooper, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez
Counsel for Respondent

Law Office of Stephen M. Johnson Inc., Phoenix
By Stephen M. Johnson
Counsel for Petitioner

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Maria Elena Cruz joined.
 STATE v. MCKENZIE
Decision of the Court

B A I L E Y, Judge:

¶1 Joe McKenzie petitions for review of the superior court’s
order denying his post-conviction relief (“PCR”) petition filed under
Arizona Rule of Criminal Procedure (“Rule”) 32. We grant review and
deny relief.

FACTS AND PROCEDURAL HISTORY

¶2 McKenzie and his then-wife Claire1 separated in early 2017,
and she obtained an order of protection against him. In July 2017,
McKenzie entered Claire’s home without her permission, threw objects at
her, and pointed a gun at her. Claire reported the incident to police officers.
In August 2017, McKenzie again entered Claire’s home without her
permission, pointed a gun at her, and demanded she retract her July 2017
report. He then forced her to engage in sexual intercourse. Claire reported
the incident to police officers and submitted to a sexual assault
examination, which confirmed the presence of McKenzie’s DNA profile on
her genitals. Two days later, police officers found McKenzie near his
mother’s home, hiding in a neighbor’s yard with a gun to his head. Police
officers took him into custody after an hours-long standoff.

¶3 The jury convicted McKenzie of aggravated harassment, a
class 6 felony, for the July 2017 incident, as well as sexual assault, a class 2
felony, first-degree burglary, a class 2 felony, disorderly conduct, a class 6
felony, aggravated harassment, a class 6 felony, and first-degree criminal
trespass, a class 1 misdemeanor, for the August 2017 incidents. The jury
found aggravating factors, and the superior court sentenced McKenzie to a
combined term of 19 years’ imprisonment.

¶4 McKenzie appealed his convictions and sentences, arguing
the superior court erred by refusing his request for a Willits jury instruction
and that insufficient evidence supported his aggravated harassment
conviction for the July 2017 incident. State v. McKenzie, 1 CA-CR 20-0317,
2021 WL 2425900, at *2–3, ¶¶ 9, 14 (Ariz. App. June 15, 2021) (mem.
decision). We disagreed, and affirmed his convictions and sentences. Id. at
*3–4, ¶¶ 13, 16–18.

¶5 McKenzie petitioned for PCR, claiming the superior court
erred by allowing the State to elicit testimony regarding a prior domestic
violence report and denying various pre-trial, trial, and post-trial motions.

1 We use a pseudonym to protect the victim’s privacy.

2
 STATE v. MCKENZIE
Decision of the Court

He also asserted ineffective assistance of counsel, arguing his appellate
counsel failed to raise prosecutorial misconduct and other issues raised at
trial. The court found McKenzie’s ineffective assistance of appellate
counsel claim non-colorable, concluding that he failed to support his
petition with evidence, detailed facts, or sufficient argument that counsel’s
performance “fell below the standard of care.” The court found the
remaining claims waived and precluded. The court summarily denied
relief, and this petition for review followed. We have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) section 13-4239(C) and Rule 32.16(a)(1).

DISCUSSION

¶6 We review the superior court’s decision to deny a petition for
PCR for an abuse of discretion, and we will affirm that decision if it is
“legally correct for any reason.” State v. Roseberry, 237 Ariz. 507, 508, ¶ 7
(2015) (citation omitted). Whether McKenzie’s appellate counsel was
ineffective is a mixed question of fact and law, and we review the court’s
legal conclusions de novo. State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017).

¶7 McKenzie’s claims involving evidentiary issues and the
court’s ruling on his motions fell under Rule 32.1(a). See Ariz. R. Crim. P.
32.1(a) (providing a remedy for constitutional violations). “A defendant is
precluded from relief under Rule 32.1(a) based on any ground . . . waived
at trial or on appeal.” Ariz. R. Crim. P. 32.2(a)(3). McKenzie waived these
issues on appeal and was therefore precluded from raising them in a
subsequent PCR proceeding. See id. The superior court did not abuse its
discretion by denying relief based on these claims.

¶8 As to McKenzie’s ineffective assistance of counsel claim, a
colorable claim of relief is “one that, if the allegations are true, might have
changed the outcome.” State v. Runningeagle, 176 Ariz. 59, 63 (1993) (citation
omitted). “To state a colorable claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance fell below
objectively reasonable standards and that this deficiency prejudiced the
defendant.” State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). There is a “strong presumption”
that appellate counsel provided effective assistance. Id. at ¶ 22 (citation
omitted). Appellate counsel must evaluate the record and select “the most
promising issues to present.” State v. Herrera, 183 Ariz. 642, 647 (App. 1995).
We do not require counsel to “raise every possible or even meritorious issue
on appeal.” Id. The strategic “process of ‘winnowing out weaker
arguments on appeal and focusing on’ those more likely to prevail, far from
being evidence of incompetence, is the hallmark of effective appellate

3
 STATE v. MCKENZIE
Decision of the Court

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751–52 (1983)).

¶9 Under this standard, McKenzie failed to overcome the
presumption that counsel used professional judgment to select the
strongest arguments for the appeal. See Herrera, 183 Ariz. at 647. He also
failed to explain how the outcome of the appeal might have been different.
See Runningeagle, 176 Ariz. at 63. Before trial, the superior court acted
within its discretion in denying McKenzie’s motion to sever the July and
August 2017 offenses, finding them cross-admissible and properly joined
under Rules 13.3 and 13.4. See Ariz. R. Crim. P. 13.4(b). Because there was
no error, appellate counsel was not ineffective by not raising the issue on
appeal.

¶10 The superior court also properly denied McKenzie’s motions
for mistrial and new trial based on alleged prosecutorial misconduct and
disclosure violations. During trial, McKenzie learned that a witness
provided new, inconsistent statements during the State’s trial preparation
with the lead detective. The court gave McKenzie time to interview the
detective, and permitted cross-examination on the inconsistent statements.
The alleged disclosure violation did not warrant a new trial, and the court’s
chosen remedy cured any potential prejudice to the defense. See State v.
Martinez-Villareal, 145 Ariz. 441, 448 (1985) (“In order for a reviewing court
to find an abuse of discretion, appellant must demonstrate that he suffered
prejudice by nondisclosure.”) (citation omitted); State v. Adamson, 136 Ariz.
250, 262 (1983) (“A declaration of a mistrial is the most dramatic remedy for
trial error and should be granted only when it appears that justice will be
thwarted unless the jury is discharged and a new trial granted.”) (citation
omitted).

¶11 As to the State’s elicitation of testimony regarding a prior
domestic violence report, during McKenzie’s cross-examination of Claire,
he implied that she had either not reported or falsely reported prior
domestic violence incidents. He therefore “opened the door” to limited
testimony involving a prior domestic violence report that resulted in a
criminal charge. On this record, appellate counsel’s decision not to raise
this issue on appeal did not fall below objectively reasonable standards. See
State v. Hausner, 230 Ariz. 60, 78–79, ¶ 73 (2012) (allowing the admission of
prior acts when the defendant “opened the door to such evidence”); Pool v.
Superior Court, 139 Ariz. 98, 103 (1984) (“We recognize that where one party
injects improper or irrelevant evidence or argument, the ‘door is open,’ and
the other party may have a right to retaliate by responding with comments
or evidence on the same subject.”) (citation omitted).

4
 STATE v. MCKENZIE
Decision of the Court

¶12 McKenzie has failed to establish a colorable claim of
ineffective assistance of appellate counsel. The superior court did not abuse
its discretion by denying him relief on that basis.

CONCLUSION

¶13 We grant review and deny relief.

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

5