                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                     STATE OF ARIZONA, Respondent,

                                        v.

                        SCOTT R. DOZIER, Petitioner.

                             No. CR 12-0207 PRPC
                              FILED 09-30-2014


           Appeal from the Superior Court in Maricopa County
                      No. CR 2003-019408-001 DT
               The Honorable Susanna C. Pineda, Judge

  REVIEW GRANTED; RELIEF GRANTED IN PART; REMANDED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Arthur G. Hazelton, Jr.
Counsel for Respondent

Perkins Coie, L.L.P., Phoenix
By Jean-Jacques Cabou, Colin P. Ahler
Co-Counsel for Petitioner
                            STATE v. DOZIER
                           Decision of the Court


Osborn Maledon, P.A., Phoenix
By Kathleen E. Brody
Co-Counsel for Petitioner

Debus Kazan & Westerhausen, L.T.D., Phoenix
By Tracey Westerhausen
Co-Counsel for Petitioner


                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Andrew W. Gould joined. Judge Jon W. Thompson
concurred in part and dissented in part.


D O W N I E, Judge:

¶1            Scott R. Dozier seeks review of the trial court’s summary
dismissal of his petition for post-conviction relief filed pursuant to Rule 32
of the Arizona Rules of Criminal Procedure. We review the summary
dismissal of a petition for post-conviction relief for an abuse of discretion.
State v. Bennett, 213 Ariz. 562, 566, ¶ 17, 146 P.3d 63, 67 (2006). Because a
material issue of fact exists regarding some of the claims asserted in
Dozier’s petition, we grant review and relief in part and remand for an
evidentiary hearing.

¶2             A jury convicted Dozier of second-degree murder. The trial
court sentenced him to an aggravated 22-year prison term. We affirmed
Dozier’s conviction and sentence on direct appeal. State v. Dozier,
1 CA-CR 05-0463 (Ariz. App. Apr. 11, 2006) (mem. decision). Dozier
thereafter filed a petition for post-conviction relief, asserting numerous
claims, including failure to disclose exculpatory evidence, presentation of
false testimony, newly discovered evidence, ineffective assistance of trial
and appellate counsel, and actual innocence. The trial court summarily
dismissed the petition, concluding Dozier had failed to state a colorable
claim for relief.

                               DISCUSSION

¶3          Dozier contends the court erred by dismissing his petition
without conducting an evidentiary hearing. A trial court may summarily



                                      2
                             STATE v. DOZIER
                            Decision of the Court

dismiss a Rule 32 petition only if it finds no “material issue of fact or law
exists which would entitle the defendant to relief.” Ariz. R. Crim. P. 32.6(c).
A defendant is entitled to an evidentiary hearing if the petition presents a
colorable claim. State v. D’Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988).
A colorable claim is one that, if the allegations are true, might have changed
the outcome. State v. Runningeagle, 176 Ariz. 59, 63, 859 P.2d 169, 173 (1993).
“A decision as to whether a petition for post-conviction relief presents a
colorable claim is, to some extent, a discretionary decision for the trial
court.” D’Ambrosio, 156 Ariz. at 73, 750 P.2d at 16. When doubt exists,
however, “a hearing should be held to allow the defendant to raise the
relevant issues, to resolve the matter, and to make a record for review.”
State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986).

I.     Claims Related to the Projectiles

¶4              In dismissing Dozier’s petition, the trial court noted that the
majority of claims related to an allegation that the State failed to disclose a
Department of Public Safety (DPS) laboratory worksheet that showed two
projectiles found during the victim’s autopsy could not have been fired
from the same weapon. Dozier stated he first became aware of this
worksheet through a public records request to DPS made while
investigating a petition for post-conviction relief. He argued the worksheet,
together with reports by experts he retained, undermined the State’s theory
that he acted alone in killing the victim with a .22 rifle and supported his
defense he was being framed by the State’s witnesses. In responding to the
petition for post-conviction relief, the State did not dispute that it did not
disclose the worksheet or that trial testimony by the lead investigating
officer regarding the two projectiles was incorrect, but argued against relief
on the basis that the evidence and testimony in question were not material
to the issue of guilt.

¶5             The State’s theory at trial was that Dozier acted alone in
shooting the victim with a .22 rifle because he considered the victim a threat
to his methamphetamine-making operation. The State’s theory was
supported by five witnesses who testified Dozier made admissions about
the murder. One of these witnesses testified that Dozier borrowed a .22 rifle
from him to shoot the victim. Consistent with the State’s theory, the lead
detective testified, and the prosecutor argued, that the two projectiles found
with the victim’s body came from a .22 caliber weapon. Information from
the undisclosed DPS worksheet and subsequent examination by Dozier’s
experts, however, indicated that although one of the projectiles was a .22
caliber bullet, the other was a nine millimeter or .38 caliber lead core
separated from its jacket.


                                      3
                             STATE v. DOZIER
                            Decision of the Court

¶6             In ruling that claims relating to the DPS worksheet and
different-sized projectiles did not offer a basis for granting relief, the trial
court stated that the evidence showed the larger of the two projectiles did
not strike the victim and, therefore, its existence did not support Dozier’s
theory of two shooters being involved in the murder. The court stated its
conclusion “was consistent” with the evidence presented at trial, including
the medical examiner’s opinion that it was not possible to determine
whether the second projectile actually struck the victim because there was
no soft tissue to examine for an entrance or exit wound due to
decomposition of the victim’s body and the lack of damage to the bone.
Although not specifically stated, implicit in the trial court’s ruling was a
finding that the larger projectile was simply debris found within the plastic
that wrapped the victim’s body. Given its conclusion that the larger
projectile had no connection to the murder, the court ruled Dozier had
failed to state a colorable claim of failure to disclose exculpatory evidence,
presentation of false testimony, newly discovered evidence, prosecutorial
misconduct, or ineffective assistance of trial counsel. See Strickler v. Greene,
527 U.S. 263, 281-82 (1999) (failure to disclose exculpatory evidence);
Strickland v. Washington, 466 U.S. 668, 687-92 (1984) (ineffective assistance of
counsel); Napue v. Illinois, 360 U.S. 264, 269-71 (1959) (false testimony); State
v. Bilke, 162 Ariz. 51, 52-53, 781 P.2d 28, 29-30 (1989) (newly discovered
evidence); Pool v. Superior Court, 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984)
(prosecutorial misconduct).

¶7              Although the trial court was not incorrect in stating that
Dozier’s proffered evidence about the larger projectile “was consistent”
with it having no connection with the murder, the evidence of record does
not establish the lack of connection as an indisputable fact. The nature of
the projectile, including its deformation and the presence of wood and
mineral embedded in it, does not necessarily preclude a finding that it
struck the victim. The medical examiner who performed the autopsy did
not opine that the larger projectile did not strike the victim. To the contrary,
he testified it was possible the victim was hit by both projectiles, but that he
could not give an exact location for the second wound due to
decomposition of the victim’s body. Because information about the
disparate sizes of the two projectiles was not forwarded to the prosecutor
or disclosed to Dozier, the parties and the medical examiner apparently
simply assumed that both projectiles were the same size and were
connected to the murder. The parties thus had no opportunity to litigate
the relevancy or materiality of the second projectile.

¶8            Under these circumstances, the claims for relief relating to the
projectiles should not have been summarily dismissed. A material issue of


                                       4
                             STATE v. DOZIER
                            Decision of the Court

fact exists as to whether the larger projectile was connected to the murder.
Summary dismissal of a petition for post-conviction relief is error where
material issues of fact exist. State v. Carriger, 132 Ariz. 301, 305, 645 P.2d
816, 820 (1982); see also Ariz. R. Crim. P. 32.8(a) (“The defendant shall be
entitled to a hearing to determine material issues of fact, with the right to
be present and to subpoena witnesses.”). Indeed, “[o]ne of the purposes of
a Rule 32 proceeding is to furnish an evidentiary forum for the
establishment of facts underlying a claim for relief, when such facts have
not previously been established of record.” State v. Watton, 164 Ariz. 323,
328, 793 P.2d 80, 85 (1990). If, after an evidentiary hearing, it is determined
that the larger projectile is merely unrelated debris, then the trial court,
depending on the other evidence presented, may be able to reasonably
conclude that the fact it was not a .22 caliber bullet would not establish the
prejudice or materiality necessary to grant relief. Dozier, however, is
entitled to an evidentiary hearing at which he can attempt to carry his
burden of establishing materiality and prejudice.

II.    Remaining Claims

¶9             The trial court did not err by summarily dismissing Dozier’s
remaining claims unrelated to the two projectiles. In its dismissal order, the
court identified each of the claims in the petition and concluded by stating
that the petition failed to state “any” colorable claim. Thus, even though
the order did not discuss each claim in detail, it addressed all of the claims
raised. Unlike Rule 32.8(d), which requires the court to “make specific
findings of fact and state expressly its conclusions of law relating to each
issue presented” when an evidentiary hearing is held, no similar
requirement exists for the summary dismissal of claims under Rule 32.6.

¶10            The trial court could properly conclude that Dozier failed to
state a colorable claim of ineffective assistance of counsel unrelated to the
issue of the two projectiles. To state a colorable claim, a defendant must
show that counsel’s performance fell below objectively reasonable
standards and that the deficient performance prejudiced the defendant.
Strickland, 466 U.S. at 687. To establish prejudice, a defendant must show
there is a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 669.
If a defendant fails to make a sufficient showing on either prong of the
Strickland test, the court need not determine whether the other prong was
satisfied. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985). The
burden is on a petitioner seeking post-conviction relief to demonstrate
ineffective assistance of counsel, and the showing must be that of provable



                                      5
                             STATE v. DOZIER
                            Decision of the Court

reality, not mere speculation. State v. Rosario, 195 Ariz. 264, 268, ¶ 23, 987
P.2d 226, 230 (App. 1999).

¶11            Dozier argues his trial counsel was ineffective because he
failed to advise him of the risks of testifying and failed to prepare him to
testify. He does not state, however, what he would have done differently
had trial counsel acted in the manner he contends was proper. Dozier has
thus failed to demonstrate prejudice.

¶12            Dozier also contends his lawyer was unprepared for trial and
was ineffective in cross-examining witnesses. Again, though, he fails to
offer specifics regarding what should have been done and how it likely
would have changed the outcome. Further, Dozier did not establish that
his lawyer’s approach to trial involved anything other than tactical
decisions. Trial counsel is presumed to have acted properly unless a
petitioner can show the attorney’s decisions were not tactical, “but, rather,
revealed ineptitude, inexperience or lack of preparation.” State v. Goswick,
142 Ariz. 582, 586, 691 P.2d 673, 677 (1984). The manner in which to cross-
examine a witness is a matter of trial strategy. State v. Tison, 129 Ariz. 546,
556, 633 P.2d 355, 365 (1981). “Matters of trial strategy and tactics are
committed to defense counsel’s judgment” and cannot serve as the basis for
a claim of ineffective assistance of counsel. State v. Beaty, 158 Ariz. 232, 250,
762 P.2d 519, 537 (1988).

¶13             Dozier also contends trial counsel was ineffective in failing to
ensure the presence of several witness whom, he claims, would have
offered favorable testimony. However, Dozier did not submit affidavits
from any of these witnesses to corroborate his assertion. See Ariz. R. Crim.
P. 32.5; State v. Borbon, 146 Ariz. 392, 399, 706 P.2d 718, 725 (1985) (holding
unsubstantiated claim witness would give favorable testimony does not
compel evidentiary hearing).

¶14            Dozier also complains that trial counsel failed to object to
certain testimony on hearsay grounds and that appellate counsel failed to
raise that issue on appeal. As the trial court correctly noted, though, the
evidence in question was admissible for a non-hearsay purpose. Thus,
failing to object or to challenge the evidence on appeal does not constitute
ineffective assistance of counsel. See State v. Noleen, 142 Ariz. 101, 106, 688
P.2d 993, 998 (1984) (holding failure to engage in futile act not ineffective
assistance).

¶15         The same is true of Dozier’s claims that trial and appellate
counsel were ineffective in not successfully opposing a ruling excluding



                                       6
                             STATE v. DOZIER
                            Decision of the Court

certain third-party culpability evidence. The trial court acted well within
its discretion in determining the admissibility of third-party culpability
evidence at trial. See State v Atwood, 171 Ariz. 576, 659, 832 P.2d 593, 642
(1992) (holding “trial court has broad discretion in evidentiary matters”),
disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25
P.3d 717, 729 (2001); Dozier, 1 CA-CR 05-0463 at ¶¶ 35-40 (holding no abuse
of discretion in excluding third-party culpability evidence). Dozier made
no showing in his petition that any action by trial or appellate counsel
would likely have led to a different outcome.

¶16          Dozier also claims appellate counsel was ineffective by failing
to consult with him in advance of the appeal. Again, though, Dozier has
not explained how the outcome of the appeal would likely have differed
had appellate counsel consulted him.

¶17           Dozier further complains that the trial court erred by
summarily dismissing his allegations of claims of cumulative ineffective
assistance of counsel and trial error. Our supreme court has held that
Arizona does not recognize the cumulative error doctrine outside the
context of prosecutorial misconduct claims. State v. Hughes, 193 Ariz. 72,
78-79, ¶¶ 25–26, 969 P.2d 1184, 1190–91 (1998). The trial court acted
properly in rejecting these claims. See State v. Smyers, 207 Ariz. 314, 318 n.4,
86 P.3d 370, 374 n.4 (2004) (lower courts are bound by decisions of Arizona
Supreme Court and may not modify or disregard them).

¶18             Finally, Dozier contends the trial court erred in summarily
dismissing his Rule 32.1(h) “actual innocence” claim. See Ariz. R. Crim. P.
32.1 cmt. (2000 Amend.). This rule provides for post-conviction relief where
the defendant “demonstrates by clear and convincing evidence that the
facts underlying the claim would be sufficient to establish that no
reasonable fact-finder would have found defendant guilty of the
underlying offense beyond a reasonable doubt.” Ariz. R. Crim. P. 32.1(h).
Even if Dozier could successfully establish all of his claims about the
projectiles, at most, he would be entitled to a new trial. The evidence would
not establish his actual innocence.

                               CONCLUSION

¶19            We grant review and grant relief in part. We remand with
instructions to conduct an evidentiary hearing regarding Dozier’s claims
relating to the two projectiles. We deny the other requested relief.




                                       7
                          STATE v. DOZIER
                     Thompson, J., concurring in part
                         and dissenting in part



T H O M P S O N, Judge, concurring in part and dissenting in part:

¶20           I agree with the majority that the trial court acted properly in
summarily denying the ineffective assistance of counsel claims. I dissent
from the determination that claims relating to the projectiles should be
remanded for an evidentiary hearing. I conclude that the petitioner, were
he to establish at an evidentiary hearing the matters he now proffers, will
not have met his burden of proof as to the materiality of the second
projectile. Therefore, I would affirm the denial of Rule 32 relief.




                                  :gsh




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