                        NOTICE: NOT FOR PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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.

                     CHIP MORAY SMITH, Petitioner.

                        No. 1 CA-CR 13-0342 PRPC
                          FILED 1-27-2015


     Petition for Review from the Superior Court in Mohave County
                            No. CR2009-1075
                  The Honorable Rick A. Williams, Judge

                 REVIEW GRANTED; RELIEF DENIED


                                  COUNSEL

Mohave County Attorney’s Office, Kingman
By Matthew J. Smith
Counsel for Respondent

Mohave County Legal Defender’s Office, Kingman
By Ronald S. Gilleo
Counsel for Petitioner
                            STATE v. SMITH
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1           Petitioner Chip Moray Smith petitions this court for review
from the dismissal of his petition for post-conviction relief. We have
considered the petition for review and, for the reasons stated, grant review
and deny relief. We have jurisdiction pursuant to Arizona Rule of Criminal
Procedure 32.9(c).

I.    Background

¶2             Smith was a prisoner in the Mohave County jail. On the date
of the incident, Smith removed one of his hands from a restraint and
attacked one of the detention officers transporting him within the jail
facility. Smith contends he told his attorney he acted in self-defense and
that footage from the jail's video surveillance system would support his
claim. He further contends he told his attorney that three days after the
incident, jail personnel took photographs of injuries he sustained during
the altercation. Smith believed these photographs would also support his
claim of self-defense.

¶3            Smith's counsel sought production of the video and the
additional photographs and the trial court twice ordered the State to
produce the evidence if it existed. The State maintained there was no video
of the incident and that nobody took photographs of Smith in the days after
the incident. The State asserted jail personnel took photographs only on the
date of the incident and that it had already produced copies of those
photographs.

¶4            Smith eventually pled guilty to aggravated assault on the day
the offer was to expire. The trial court sentenced him to a stipulated term
of three years' imprisonment. Four days later, a detention officer from the
jail informed Smith's post-conviction relief counsel that he took digital
photographs of Smith's injuries approximately two days after the incident
and did so at Smith's request.




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                             STATE v. SMITH
                            Decision of the Court

¶5            Smith filed a petition for post-conviction relief of-right in
which he claimed he had newly discovered evidence that jail personnel
took additional photographs of Smith's injuries in the days after the
incident and that the State failed to disclose and/or had lost or destroyed
those photographs. Smith further claimed the jail's video surveillance
system would have captured all or part of the incident and the State failed
to disclose and/or had lost or destroyed the video as well. Smith argued
not only that this evidence would have supported his claim of self-defense,
but he would have proceeded to trial and sought a jury instruction pursuant
to State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), had he known the
evidence was lost or destroyed. Finally, Smith claimed his trial counsel was
ineffective when he failed to take adequate measures to determine that jail
personnel had taken the additional photographs and determine the
incident should have been captured on video.

¶6            The trial court found Smith presented colorable claims for
relief and held an evidentiary hearing. Over the course of two days, the
court heard testimony from Smith's trial counsel, several jail personnel,
Smith's investigator and Smith himself. The trial court ultimately denied
relief and Smith now seeks review.

II.    Discussion

¶7             Whether to grant or deny post-conviction relief pursuant to
Rule 32 is within the trial court’s discretion. This court will not reverse the
trial court’s decision absent an abuse of discretion. State v. Schrock, 149 Ariz.
433, 441, 719 P.2d 1049, 1057 (1986). Abuse of discretion is "an exercise of
discretion which is manifestly unreasonable, exercised on untenable
grounds or for untenable reasons." State v. Woody, 173 Ariz. 561, 563, 845
P.2d 487, 489 (App. 1992). In reviewing an exercise of discretion, "[T]he
question is not whether the judges of this court would have made an
original like ruling, but whether a judicial mind, in view of the law and
circumstances, could have made the ruling without exceeding the bounds
of reason. We cannot substitute our discretion for that of the trial judge."
Associated Indem. Corp. v. Warner 143 Ariz. 567, 571, 694 P.2d 1181,
1185 (1985), quoting Davis v. Davis, 78 Ariz. 174, 179, 277 P.2d 261, 265 (1954)
(Windes, J., specially concurring).

¶8            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, a defendant must show that there is a "reasonable probability


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                             STATE v. SMITH
                            Decision of the Court

that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694. The different result must be a
provable reality, not mere speculation. State v. Rosario, 195 Ariz. 264, 268,
¶ 23, 987 P. 2d 226, 230 (App. 1999).

¶9          For a defendant to obtain post-conviction relief based on
newly discovered evidence:

       (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, 781 P.2d 28, 29-30 (1989).

¶10             We deny relief. Regarding ineffective assistance of counsel,
Smith's trial counsel testified it was information Smith provided that caused
him to take no further steps to obtain the additional photographs or
determine if they were lost or destroyed. Counsel testified Smith told him
the victim simply grabbed him by the arm as she and another officer
escorted or prepared to escort Smith through the jail facility. Based on
Smith's representations, counsel determined the additional photographs
were not relevant to the assault against the victim, would not otherwise aid
in a claim of self-defense and would not change the outcome of the case.
Further, Smith told his counsel that the additional photographs were
relevant to show detention officers assaulted him after Smith allegedly
assaulted the victim, not before. Counsel told Smith "on multiple occasions"
that while this might give rise to a civil claim, this was not a defense to the
initial assault on the victim. While Smith contested counsel's testimony, the
determination of the credibility of witnesses at an evidentiary hearing in a
post-conviction relief proceeding rests solely with the trial judge. State v.
Fritz, 157 Ariz. 139, 141, 755 P.2d 444, 446 (App. 1988). Therefore, the
information Smith provided to counsel did not suggest the additional


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                             STATE v. SMITH
                            Decision of the Court

photographs would aid the defense of the case or that their presence or
proven loss or destruction would otherwise contribute to Smith's defense.
A court may determine the reasonableness of counsel's actions by the
information supplied to counsel by the defendant. Strickland, 466 U.S. at
691. Given the information Smith provided counsel, counsel's actions
and/or inactions regarding the additional photographs did not fall below
objectively reasonable standards.

¶11            Smith also suffered no prejudice from any action or inaction
of counsel. Regarding the additional photographs, a detention officer
testified he took three digital photographs of Smith's injuries two to four
days after the incident and did so at Smith's request. He further testified he
followed administrative procedures and gave the digital camera to
"administration," but there was no evidence regarding what happened to
the camera or digital images after that. Regardless, the additional
photographs would have been cumulative. The officer who took pictures
of Smith the day of the incident testified he also took photographs of all of
Smith's injuries, and Smith does not dispute that the State provided Smith
copies of those photographs. Further, that there was any difference
between the two sets of photographs is a matter of speculation. The only
difference Smith identified between the two sets of photographs was that
one of the photographs from the later, additional set would allegedly have
shown "four finger marks" under his right arm. That these alleged marks
would appear in any photograph is speculation because the officer who
took the later photographs testified he took pictures of injuries Smith
identified in the area of his wrist, shoulder and head. We also note that
Smith never explained at the evidentiary hearing how the victim allegedly
grabbing him by the arm while escorting him through a jail, even to the
degree of allegedly leaving marks on his arm, or any other action of the
victim caused Smith to reasonably believe he needed to defend himself
from the victim by attacking her. For these reasons, Smith suffered no
prejudice.

¶12            Regarding video of the incident, witnesses testified the
incident took place out of the field of view of the jail's surveillance cameras.
While Smith presented evidence to the contrary, the determination of the
credibility of the witnesses was a matter for the trial court. Fritz, 157 Ariz.
at 141, 755 P.2d at 446. Therefore, there was nothing counsel could do
further to obtain any video or establish the State lost or destroyed any
video, and Smith suffered no prejudice from any action or inaction of
counsel in regard to the video.




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                             STATE v. SMITH
                            Decision of the Court

¶13            Regarding these issues in the context of newly discovered
evidence, as explained above, the photographs were cumulative to the
photographs taken the day of the incident; Smith offers nothing but
speculation that the additional photographs would have provided any
additional information, and there is nothing but speculation the evidence
or its proven loss or destruction would have changed the results. Therefore,
the trial court did not abuse its discretion when it denied the petition for
post-conviction relief in the context of newly discovered evidence as well
as the context of ineffective assistance of counsel. See Bilke, 162 Ariz. at 52-
53, 781 P.2d 29-30.

¶14           We grant review and deny relief.




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