State v. Harvey

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ADRIAN PHILLIP HARVEY, Petitioner.

No. 1 CA-CR 24-0593 PRPC
FILED 03-06-2025

Petition for Review from the Superior Court in Maricopa County
No. CR 2015-002237-001
The Honorable Danielle J. Viola, Judge

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Douglas Gerlach
Counsel for Respondent

The Stavris Law Firm, PLLC, Scottsdale
By Christopher Stavris
Counsel for Petitioner
 STATE v. HARVEY
Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 Adrian Harvey petitions this court to review the summary
dismissal of his petition for post-conviction relief (“PCR”) filed under
Arizona Rule of Criminal Procedure (“Rule”) 32.1. We grant review but
deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 Harvey’s ex-girlfriend was found in her bed, fatally shot, with
bruised thighs and jewelry ripped from her neck. State v. Harvey,
1 CA-CR 17-0814, 2019 WL 1500710, at *1, ¶ 2 (Ariz. App. Apr. 4, 2019)
(mem. decision). The victim’s cellphone was missing, and there were no
guns or bullet casings at the scene. Id. Harvey told police he last saw the
victim walking into her home. Id. at ¶ 3. But he told two other ex-girlfriends
he witnessed the victim’s suicide and told one he took the gun to avoid
suspicion. Id. Harvey was emotionally and physically abusive to all three
ex-girlfriends and had threatened before to kill the victim. Id. at ¶¶ 2-3.

¶3 Harvey was tried for first-degree murder and burglary.
Harvey, 1 CA-CR 17-0814, at *1, ¶ 4. The jury found him not guilty on the
greater charge of first-degree murder but could not decide on the
lesser-included offense of second-degree murder. Id. The State then retried
Harvey for second-degree murder. Id. at ¶ 5. The jury found him guilty, and
the court sentenced him to twenty years in prison. Id.

¶4 We affirmed Harvey’s conviction and sentence on direct
appeal. Harvey, 1 CA-CR 17-0814, at *3, ¶ 19. He then unsuccessfully
petitioned for PCR on many grounds. Harvey petitioned this court for
review. We have jurisdiction under Article 6, Section 9 of the Arizona
Constitution, Arizona Revised Statutes § 13-4239, and Rule 32.1.

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Decision of the Court

DISCUSSION

¶5 Harvey raises several arguments. We address them in turn,
reviewing whether he has met his burden to show an abuse of discretion or
legal error. State v. Reed, 252 Ariz. 236, 238, ¶ 6 (App. 2021).

A. Harvey Failed to Show Ineffective Assistance of Counsel.

¶6 We first address Harvey’s PCR claims based on ineffective
assistance of counsel (“IAC”). See Ariz. R. Crim. P. 32.1(a); State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002).

¶7 To state a colorable trial IAC claim, a defendant must prove
counsel’s performance was both deficient and prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A failure to prove either element
dooms the claim. State v. Bennett, 213 Ariz. 562, 567, ¶ 21 (2006). To show
deficient performance, the defendant must overcome the strong
presumption that counsel’s conduct could constitute a sound trial strategy.
Strickland, 466 U.S. at 689. The defendant must show counsel acted
objectively unreasonably, id. at 687-88, by offering evidence—not just
conclusory statements—that counsel’s conduct fell below prevailing
professional standards, see State v. Leyva, 241 Ariz. 521, 527-28, ¶ 21 (App.
2017). Similarly, to show prejudice, the defendant must provide some
evidence of a reasonable probability that counsel’s deficient performance
affected the case’s outcome. State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App.
1999); State v. Donald, 198 Ariz. 406, 414, ¶ 21 (App. 2000) (“[D]efendant’s
challenge must consist of more than conclusory assertions and be
supported by more than regret.”); Harrington v. Richter, 562 U.S. 86, 112
(2011).

¶8 Like a trial IAC claim, a presumption exists that appellate
counsel provided effective assistance. State v. Macias, 249 Ariz. 335, 340-41,
¶¶ 17-18 (App. 2020). Appellate counsel must review the record and select
the most promising issues to raise in an appeal. State v. Herrera, 183 Ariz.
642, 647 (App. 1995). Generally, “[a]ppellate counsel is not ineffective for
selecting some issues and rejecting others.” Id.; Jones v. Barnes, 463 U.S. 745,
752-53 (1983) (“There can hardly be any question about the importance of
having the appellate advocate examine the record with a view to selecting
the most promising issues for review. . . . A brief that raises every colorable
issue runs the risk of burying good arguments . . . .”). Nevertheless, if
counsel ignores issues stronger than those selected for the appeal, a
defendant can overcome the presumption of effective assistance of counsel.

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See Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Gray v. Greer, 800 F.2d
644, 646 (7th Cir. 1986)).

¶9 We agree with the State that Harvey relies on conclusory
assertions, not evidence. See State v. Bigger, 251 Ariz. 402, 409, ¶ 15 (2021)
(“Although an affidavit may not always be required to establish that
counsel’s performance did not meet prevailing professional standards, a
defendant must do more than disagree with, or posit alternatives to,
counsel’s decisions to overcome the presumption of proper action.”
(cleaned up) (quoting with approval State v. Bigger, 250 Ariz. 174, 182, ¶ 23
(App. 2020) vacated 251 Ariz. 402)). We could reject Harvey’s IAC
arguments on that ground alone. But his arguments also fail for other
reasons.

¶10 Harvey first asserts IAC because trial and appellate counsel
did not challenge testimony at the grand jury that the victim’s hands tested
negative for gunshot residue. Trial testimony established that “gunshot
residue” is a generic term that includes smokeless-gunpowder residue, for
which the victim’s hands did test negative. Even if the grand-jury testimony
used an overbroad term, the inaccuracy was immaterial, and Harvey failed
to show deficiency or prejudice from counsel’s failure to challenge it. Cf.
State v. Moody, 208 Ariz. 424, 439-40, ¶ 31 (2004) (Grand-jury proceedings
preceding a conviction may be challenged on direct appeal only if the State
knew the indictment was based on perjured, material testimony.).

¶11 Harvey asserts IAC based on trial counsel’s forensic
investigation and selection of a blood-pattern expert. Harvey points out
that a prosecutor criticized the expert in an earlier case, the expert conceded
he was less experienced than the State’s expert, and other experts had more
helpful opinions. But even if counsel could have used stronger experts, the
selected expert offered appropriate testimony supporting Harvey’s
defense. Counsel’s use of the expert did not amount to deficient
performance. See State v. King, 250 Ariz. 433, 442, ¶¶ 38-39 (App. 2021)
(Credible experts may disagree in good faith, and a defendant is not entitled
to a new trial simply because he or she has found a new expert with
different opinions.).

¶12 Harvey next asserts IAC based on trial counsel’s failure to
make certain evidentiary objections. But he fails to show a reasonable
likelihood of success on the objections or that the challenged evidence was
critical to his conviction. First, Harvey argues that counsel should have
sought to preclude evidence that he had an arrest warrant. But the warrant
provided an exculpatory explanation for Harvey’s failure to call the police

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upon the victim’s death, evidencing a tactical decision to use, rather than
exclude, the evidence. See Ariz. R. Evid. 401-03 (Generally, relevant
evidence is admissible unless its relevance is substantially outweighed by a
danger of unfair prejudice.). Second, Harvey argues counsel should have
acted when a fact witness offered expert testimony on domestic violence.
But at the retrial, the witness, one of Harvey’s ex-girlfriends, did not offer
expert testimony—she merely described how her social-work background
affected her reaction to being abused by Harvey. Finally, Harvey argues
counsel should have sought reconsideration of a ruling deeming other-acts
evidence admissible under Arizona Rule of Evidence 404(b). But the
evidence’s admissibility was confirmed on direct appeal. See Harvey,
1 CA-CR 17-0814, at *1-2, ¶¶ 6-9. Even accepting Harvey’s argument that
the issue was presented in a different “context” on appeal, it cannot provide
grounds for PCR. See Ariz. R. Crim. P. 32.2(a); State v. Shrum, 220 Ariz. 115,
118, ¶ 12 (2009) (PCR is precluded when based on a ground that was or
could have been decided on appeal.).

¶13 Harvey next asserts IAC based on trial counsel’s failure to
impeach another of his ex-girlfriends with a text message in which she
offered to withhold her testimony in exchange for his forgiveness of
child-support arrears. Counsel impeached the witness about the parties’
custody dispute and her drug use. Harvey fails to show how counsel’s
failure to raise an additional challenge to her veracity constituted IAC.

¶14 Harvey next asserts IAC based on trial and appellate
counsel’s handling of the jury instructions. First, he argues trial counsel
should have requested a “mere presence” jury instruction. But on this
record, where the jury rejected Harvey’s suicide story, Harvey has not
shown how the instruction would have altered the outcome. Second,
Harvey argues trial and appellate counsel should have challenged the
lesser-included second-degree murder instruction in his first trial. Harvey
fails to show prejudice again. To be sure, a lesser-included second-degree
murder instruction is inappropriate if the defendant denies all involvement
in a homicide and no evidence provides a basis for a second-degree murder
conviction. State v. Wall, 212 Ariz. 1, 5-6, ¶ 27 (2006). But here, evidence,
including the victim’s bruising and ripped-off jewelry, supported a
second-degree murder conviction. See A.R.S. § 13-1104(A) (A person
commits second-degree murder if, without premeditation, he or she
intentionally, knowingly, or recklessly causes another’s death.). For similar
reasons, we reject Harvey’s argument that appellate counsel committed
IAC by failing to challenge the denial of his motion for a judgment of
acquittal on second-degree murder in the second trial.

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B. Harvey Failed to Show an Unlawful Sentence.

¶15 Harvey finally contends he received an unlawful sentence
because the court considered a prior conviction premised on a crime that
does not exist under Arizona law. See Ariz. R. Crim. P. 32.1(c). The State
alleged a prior conviction for criminal damage, which Harvey asserts was
for attempted criminal damage, which usually is not a cognizable offense
under Arizona law. See A.R.S. § 13-1602(A) (All forms of criminal damage
require reckless mens rea except one: intentionally tampering with utility
property.); State v. Adams, 155 Ariz. 117, 119-20 (App. 1987) (Liability for
attempted crimes is limited to intentional conduct under Arizona law.). But
on this record, any inaccuracy in the State’s allegation of the
property-damage conviction was immaterial, as was any deficiency in the
conviction itself. The court made no findings about the conviction; instead,
it relied exclusively on two unrelated drug convictions to aggravate
Harvey’s sentence. We need not decide whether the property-damage
conviction was subject to collateral attack because it played no role in
Harvey’s sentencing.

CONCLUSION

¶16 The superior court did not err by summarily dismissing
Harvey’s PCR petition. We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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