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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              KAZUHIKO MATSUMOTO WILSON, Petitioner.

                          No. 1 CA-CR 15-0148 PRPC
                                FILED 6-13-2017


     Petition for Review from the Superior Court in Coconino County
                          No. S0300CR201000088
                   The Honorable Dan R. Slayton, Judge

                   REVIEW GRANTED; RELIEF DENIED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Respondent

Craig Williams, Attorney at Law, P.L.L.C., Prescott Valley
By Craig A. Williams
Counsel for Petitioner


                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge James P. Beene joined.
                             STATE v. WILSON
                            Decision of the Court

W I N T H R O P, Judge:

¶1            Petitioner, Kazuhiko Matsumoto Wilson, petitions this court
for review of the denial of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
but deny relief.

                              BACKGROUND

¶2            A jury found Wilson guilty of first degree murder, first degree
burglary, armed robbery, theft, possession of marijuana for sale, possession
or use of narcotic drugs, and solicitation to hinder prosecution in the first
degree. The trial court sentenced him to imprisonment for natural life plus
2.5 years, and this court affirmed his convictions and sentences on direct
appeal. Wilson filed a timely petition for post-conviction relief and raised
claims of ineffective assistance of counsel. The same court that presided
over Wilson’s trial found Wilson presented colorable claims for relief and
held a two-day evidentiary hearing, after which the court denied relief.
Wilson now seeks review.

                                  ANALYSIS

       I.     Ineffective Assistance of Counsel

¶3             In his petition for review, Wilson argues the court erred when
it found trial counsel was not ineffective. 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). To show prejudice, “[t]he 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 694.
Strategic choices of counsel made after adequate investigation of the law
and facts, however, “are virtually unchallengeable.” Id. at 690. “Defense
counsel’s determinations of trial strategy, even if later proven unsuccessful,
are not ineffective assistance of counsel.” State v. Valdez, 160 Ariz. 9, 15, 770
P.2d 313, 319 (1989) (citations omitted), departed from on other grounds by
Krone v. Hotham, 181 Ariz. 364, 366-67, 890 P.2d 1149, 1151-52 (1995).

¶4            We review a superior court’s ruling on a petition for post-
conviction relief for an abuse of discretion. State v. Schrock, 149 Ariz. 433,
441, 719 P.2d 1049, 1057 (1986). We review a court’s findings of fact made
after an evidentiary hearing to determine if they are clearly erroneous. State
v. Berryman, 178 Ariz. 617, 620, 875 P.2d 850, 853 (App. 1994).


                                       2
                            STATE v. WILSON
                           Decision of the Court

             A.     The Failure to File a Motion to Suppress

¶5            Wilson first argues his trial counsel was ineffective when he
failed to file a motion to suppress evidence investigators seized from
Wilson’s residence pursuant to a search warrant. The warrant at issue was
a “daytime only” warrant. This meant that investigators had to serve the
warrant between 6:30 a.m. and 10:00 p.m. See Ariz. Rev. Stat. § 13-3917
(2001). Wilson argues counsel should have sought to suppress the evidence
because investigators served the warrant at 10:03 p.m.

¶6             We deny relief because the trial court did not abuse its
discretion when it found that defense counsel’s failure to file a motion to
suppress did not fall below objectively reasonable standards. Counsel
testified that he considered filing a motion to suppress for the reasons
Wilson urged, but decided not to once he investigated the facts, researched
the law, and spoke to other defense counsel. Counsel learned that
investigators knocked and announced at the residence at 9:50 p.m., but
nobody was home. Rather than break in, they contacted another person on
the property’s lease, who informed the investigators that he was on the way
and would unlock the door. That person arrived soon afterward, and the
door was opened at 10:03 p.m.

¶7            Counsel did not believe a motion to suppress would be
successful because, in counsel’s view, investigators “served” the warrant
before 10:00 p.m. They simply did not gain physical entry until 10:03 p.m.
Counsel further believed there was no chance of success for a motion to
suppress that argued investigators should have forced their way into the
residence to get inside by 10:00 p.m. when they knew one of the residents
was on his way with a key. Counsel believed that under these
circumstances, there was no “legitimate” issue and that to file a motion to
suppress on these grounds would have been “ludicrous and stupid and a
waste of my time.”

             B.     Inconsistent Theories of Defense

¶8            Wilson next argues his trial counsel was ineffective because
counsel presented inconsistent defense theories. Wilson argues his sole
defense should have been that one or more of the three members of a
“heroin ring” killed the victim, and that members of the ring later gave the
unwitting Wilson the victim’s backpack, which contained marijuana and
the gun used to kill the victim. Wilson argues his trial counsel presented
inconsistent defenses that suggested the members of the heroin ring, the
victim’s roommates, or other people murdered the victim.



                                     3
                             STATE v. WILSON
                            Decision of the Court

¶9             We deny relief. Defense counsel testified there was no
inconsistent defense and that any claim otherwise was a
mischaracterization. Counsel testified that the defense theory throughout
the case was that one or more of the three members of the heroin ring or
someone at the ring’s direction committed the murder. Counsel, however,
had to deal with evidence in Wilson’s residence and vehicle that directly
tied Wilson to the murder, as well as the testimony of two witnesses who
claimed Wilson confessed to the murder. Counsel testified that what
Wilson describes as inconsistent defenses was counsel’s attempts to
discredit the adequacy of the police investigation in general and, more
specifically, their investigation of the two people who claimed Wilson
confessed. Counsel was also trying to show how those two people could
have gained knowledge of details of the murder either from the members
of the heroin ring or from their own involvement on behalf of the heroin
ring and, therefore, details of the murder did not necessarily come from
Wilson. Further, evidence that other people had the motive and
opportunity to murder the victim was to show simply that others had
motive and opportunity, not to present alternative theories that those others
committed the murder and/or to show that the heroin ring and/or
someone at the ring’s direction did not commit the murder. Finally, counsel
testified that he did not lay all this out in an opening statement because he
did not want to tip off the State to the theory of defense, but wanted to build
the defense “brick by brick.” The trial court did not abuse its discretion
when it found defense counsel’s strategy did not fall below objectively
reasonable standards.

              C.     The Failure to Successfully Admit Statements of Members
                     of the Heroin Ring

¶10           Wilson next argues his trial counsel was ineffective when
counsel failed to successfully admit statements of members of the heroin
ring. In those statements, one or more of the ring’s members allegedly told
Wilson that the victim stole the ring’s heroin, and Wilson needed to sell the
marijuana in the backpack to make up for the loss because Wilson had
introduced the victim to the ring.

¶11           Wilson conceded below that his counsel attempted to admit
these statements and the trial court properly sustained the State’s objections
based on hearsay. Wilson argues, however, that counsel was ineffective
when counsel failed to attempt to admit these statements under the
alternative theory that the statements were admissible as prior inconsistent
statements pursuant to Arizona Rule of Evidence 613. Wilson argues
counsel should have asked each member of the ring if they made the above


                                      4
                            STATE v. WILSON
                           Decision of the Court

statements, get them to deny they had, and then offer Wilson’s testimony
that they made these statements to him.

¶12           We deny relief. Trial counsel testified he made the strategic
decision to not attempt to admit the statements as prior inconsistent
statements because he did not think they were admissible as prior
inconsistent statements. He believed the purpose of Rule 613 was not to
simply ask a person if they committed a crime, have the person deny they
did, and then have the defendant testify the person told the defendant they
committed the crime. The trial court agreed. Counsel also believed that if
he attempted to introduce the statements in this manner, the jury would
believe Wilson’s testimony was rehearsed and/or staged. Counsel believed
it was important to establish and maintain credibility with the jury. The
trial court did not abuse its discretion when it found counsel’s strategic
decision to not attempt to admit the statements of the heroin ring as prior
inconsistent statements did not fall below objectively reasonable standards.

      II.    Denial of the Right to Effective Cross-Examination

¶13            As the final issue on review, Wilson argues the trial court
erred when it denied him the right to effectively cross-examine trial counsel
during the evidentiary hearing. Specifically, Wilson argues the court
should have allowed him to cross-examine trial counsel regarding his
failure to ask the members of the heroin ring point-blank if they killed the
victim. We deny relief because the trial court correctly found that the
petition for post-conviction relief did not present any claim of ineffective
assistance based on the failure to ask this question, and Wilson was
attempting to go beyond the scope of the issues he raised in his petition.

                              CONCLUSION

¶14          Accordingly, we grant review but deny relief.




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

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