                                                                 FILED BY CLERK
                        IN THE COURT OF APPEALS
                            STATE OF ARIZONA                        JUL 23 2013
                              DIVISION TWO
                                                                     COURT OF APPEALS
                                                                       DIVISION TWO

THE STATE OF ARIZONA,                           )
                                                )
                              Respondent,       )   2 CA-CR 2013-0120-PR
                                                )   DEPARTMENT B
             v.                                 )
                                                )   OPINION
VAUGHN MILES DENZ,                              )
                                                )
                                Petitioner.     )
                                                )


PETITION FOR REVIEW FROM THE SUPERIOR COURT OF YAVAPAI COUNTY

                            Cause No. P1300CR20090209

                          Honorable Tina R. Ainley, Judge

                     REVIEW GRANTED; RELIEF GRANTED


Sheila Sullivan Polk, Yavapai County Attorney
 By Steven J. Sisneros                                                       Prescott
                                                            Attorneys for Respondent

David Goldberg                                                Fort Collins, Colorado
                                                              Attorney for Petitioner


E C K E R S T R O M, Judge.
¶1            Vaughn Denz petitions this court for review of the trial court’s orders

denying his petitions for post-conviction relief filed pursuant to Rule 32, Ariz. R.

Crim. P.   We will not disturb those rulings unless the court clearly has abused its

discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). We

grant review and, because trial counsel performed deficiently by failing to make a

reasoned decision to forgo consultation with an independent medical expert, and because

that deficiency prejudiced Denz, we grant relief.

                                   Background

¶2            Denz was convicted after a jury trial of child abuse and two counts of

aggravated assault and sentenced to concurrent prison terms, the longest of which are

eighteen years. We affirmed his convictions and sentences on appeal. State v. Denz,

No. 1 CA-CR 09-0829 (memorandum decision filed Oct. 28, 2010). Denz’s convictions

stemmed from an incident in which his infant son sustained skull fractures, a torn

frenulum, liver and spleen lacerations, and a bruised adrenal gland. Medical examination

also revealed healing rib fractures. Denz claimed he had accidentally dropped the infant

while changing his diaper and the infant had landed face-first onto a carpeted floor.

Several medical experts testified, however, that the infant’s injuries were inconsistent

with Denz’s explanation. A medical doctor further testified that the infant’s abdominal

injuries could only have resulted from intentional blows to his stomach.

¶3            Denz sought post-conviction relief, raising a claim of actual innocence and

asserting that trial counsel had been ineffective in failing to present testimony by an

independent medical expert and in failing to present character evidence “that would have

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confirmed [Denz] was not violent with children but a patient and trusted caregiver.” He

further asserted counsel had been ineffective in failing to seek dismissal of “two of the

three child abuse related charges as multiplicitous.” In support of his claims, Denz

provided an affidavit by a forensic pathologist stating he had reviewed the evidence and

would have testified that the infant’s liver and spleen lacerations were not consistent with

a blow but instead were “consistent with deceleration injuries” from a fall; that “[o]ne or

more of the skull abnormalities” might “not necessarily be fractures”; that a “bone

fragility disorder” could not be excluded; and that “nothing about the imaging or critical

findings . . . [wa]s specific for, or characteristic of,” non-accidental injury.      Denz

additionally included unsworn letters from several individuals generally claiming he was

unlikely to harm a child.

¶4            The trial court determined Denz’s “claims related to the sufficiency of the

evidence and multiplicity are precluded” and he had not presented a colorable claim that

counsel had been ineffective “by failing to present character witnesses.” It determined,

however, that his claim regarding an independent medical expert was colorable and held

an evidentiary hearing on that claim. After that hearing, the court denied Denz’s petition

for post-conviction relief, concluding that counsel had made a reasoned tactical decision

not to consult with, or seek testimony from, an independent medical expert and that, in

any event, counsel’s conduct had not prejudiced Denz “in light of all the evidence

presented and the fact that [Denz had] fled the State following the child’s

hospitalization.”



                                             3
¶5            After that ruling, Denz filed a successive petition for post-conviction relief,

claiming State v. Sosnowicz, 229 Ariz. 90, 270 P.3d 917 (App. 2012), constituted a

significant change in the law pursuant to Rule 32.1(g).          He argued Sosnowicz was

retroactively applicable and would have prohibited the experts in his case from opining

that “the child’s injuries were ‘non-accidental’, ‘intentional’ and the result of ‘child

abuse.’” The trial court summarily rejected that claim, concluding Sosnowicz was not a

significant change in the law that would affect Denz’s convictions. Denz then filed

petitions for review of the denial of his initial and successive petitions for post-conviction

relief. We granted his request to consolidate those petitions.

                                    Discussion

¶6            We first address Denz’s argument that the trial court erred in rejecting his

claim that counsel should have consulted with an independent medical professional about

the infant’s injuries. To prevail on this claim, Denz was required to demonstrate that

counsel’s conduct fell below prevailing professional norms and that he was prejudiced

thereby. Strickland v. Washington, 466 U.S 668, 687-88 (1984). Whether counsel

rendered ineffective assistance is a mixed question of fact and law. See id. at 698

(“[B]oth the performance and prejudice components of the ineffectiveness inquiry are

mixed questions of law and fact.”). “[W]e defer to the trial court’s factual findings but

review de novo the ultimate legal conclusion.” In re MH2010-002637, 228 Ariz. 74,

¶ 13, 263 P.3d 82, 86 (App. 2011).

¶7            In addressing a claim of ineffective assistance of counsel, we must presume

“counsel’s conduct falls within the wide range of reasonable professional assistance” that

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“‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689, quoting Michel

v. Louisiana, 350 U.S. 91, 101 (1955); accord State v. Schurz, 176 Ariz. 46, 58, 859 P.2d

156, 168 (1993). To overcome this presumption, Denz was required to show counsel’s

decisions were not tactical in nature, but were instead the result of “ineptitude,

inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673,

677 (1984). Thus, disagreements about trial strategy will not support an ineffective

assistance claim if “the challenged conduct has some reasoned basis,” State v. Gerlaugh,

144 Ariz. 449, 455, 698 P.2d 694, 700 (1985), even if the tactics counsel adopts are

unsuccessful. See State v. Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975).

¶8            Denz argues that, based on the evidence presented, he “proved” counsel’s

“decision was incompetent,” “unreasonable,” and “prejudiced [Denz’s] defense.” At

trial, counsel elicited testimony from the state’s three medical experts that they could not

state with certainty when the infant’s injuries—except the torn frenulum—had occurred

and that those injuries could have occurred days before the alleged incident and gone

unnoticed. Counsel also secured testimony that the infant’s torn frenulum could have

resulted from a short fall and that the infant’s other injuries could have resulted from

previous accidents involving other family members.            Counsel’s closing included

argument that, although the state had proven the child had been seriously injured, it had

not demonstrated with any certainty when those injuries had occurred and thus had not

demonstrated that Denz had caused them. He also suggested in closing—with only scant

support from the trial evidence—that it was possible the infant’s injuries had been

accidental and could have resulted from a short fall.

                                             5
¶9            At the post-conviction evidentiary hearing, trial counsel testified that, after

he had interviewed three medical experts disclosed by the state, he concluded they could

not offer more than “speculation as to what happened,” consistent with his defense

strategy that Denz “did not do it; that this was purely accidental.” Counsel stated he had

considered consulting with an independent medical expert but decided that was not a

“strategy that [he] wanted to pursue,” instead opting to use the state’s experts’ “testimony

to bolster our own case.” He stated that, based on the pretrial interviews, none of the

three could “definitively tell [him] what the exact cause” of the infant’s injuries had been,

the time those injuries had occurred, or “who might have [caused] them.” He further

testified he feared a defense expert would “look[] like a hired gun” to the jury, and

another expert’s testimony could “re-emphasize again the mode of injury” to the infant,

which might “sway the jury against [his] client.” Counsel admitted, however, that had he

obtained an expert opinion similar to the pathologist’s, he would have presented that

testimony.

¶10           The Yavapai County Public Defender testified that “[g]enerally speaking” it

was not “competent practice” to “accept the State’s expert’s opinions without first having

an evaluation by an independent expert.” He acknowledged, however, that using the

state’s expert to introduce evidence favorable to the defense was a valid trial tactic. But

he opined that it was not “prudent practice” to do so without first consulting with an

independent expert unless, for example, the attorney was “also a practicing doctor who

knows the circumstances” and that it would be a “heavy burden for an attorney to make

that judgment call without having independent information to corroborate his

                                             6
information.”     Trial counsel conceded he had no medical training or expertise, had

limited experience with medical professionals, and could not independently assess

whether the state’s witnesses were competent. He also stated “this was the sole child-

abuse case that [he had] ever tried” and he had not consulted with any other attorneys

about the case. Moreover, he had no background or training to evaluate the state’s

written disclosure prior to conducting an interview with its experts.

¶11             Based on the foregoing, we cannot agree with the trial court’s conclusion

that counsel’s failure to consult with an independent medical professional was a reasoned

or informed strategic decision. Strategic decisions are “conscious, reasonably informed

decision[s] made by an attorney with an eye to benefitting his client.” Pavel v. Hollins,

261 F.3d 210, 218 (2d Cir. 2001). Thus, in general, the “decision not to hire experts falls

within the realm of trial strategy.” Yohey v. Collins, 985 F.2d 222, 228 (5th Cir. 1993).

Similarly, the decision whether to call a particular witness is normally a strategic decision

to be made by counsel, see State v. Mata, 185 Ariz. 319, 335, 916 P.2d 1035, 1051

(1996), and avoiding a so-called “battle of the experts” may, in some cases, constitute

sound trial strategy. Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 790

(2011). The risk that additional expert testimony might distract the jury or unduly

emphasize aspects of a case that counsel wishes to minimize may justify counsel’s

decision to forgo calling a particular witness. See id. (decision to not present expert

evidence justified based on “possibility that expert testimony could shift attention to

esoteric matters of forensic science . . . [or] distract the jury from whether [witness] was

telling the truth”).    Further, although counsel has a duty to engage in adequate

                                             7
investigation of possible defenses, counsel may opt not to pursue a particular

investigative path based on his or her reasoned conclusion that it would not yield useful

information or is otherwise unnecessary in light of counsel’s chosen trial strategy. See

Strickland, 466 U.S. at 691 (reasonable strategic decision may render particular

investigation unnecessary); McClain v. Hall, 552 F.3d 1245, 1253 (11th Cir. 2008)

(counsel need not conduct further investigation if counsel could reasonably conclude it

“would not yield valuable evidence”).

¶12          However, the decision not to consult with an expert may qualify as sound

trial strategy only if counsel had a reasoned basis justifying the decision. “A purportedly

strategic decision is not objectively reasonable ‘when the attorney has failed to

investigate his options and make a reasonable choice between them.’” Towns v. Smith,

395 F.3d 251, 258 (6th Cir. 2005), quoting Horton v. Zant, 941 F.2d 1449, 1462 (11th

Cir. 1991); see also Strickland, 466 U.S. at 690-91 (“[S]trategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.”). Absent sufficient

information about an expert’s potential testimony, or specialized knowledge and

experience about the factual issues involved, counsel cannot reasonably evaluate whether

an expert’s opinion would be valuable or weigh the risks or benefits of calling an expert

at trial.




                                            8
¶13           As we noted above, Denz’s trial counsel had no particular experience with

medical testimony or with child abuse cases.1        Therefore, in the absence of any

consultation with an independent medical expert, he lacked sufficient information to

discern whether his chosen defense strategy—relying solely on the state’s expert

witnesses to support his theory of the case—was the most appropriate strategy in

mounting Denz’s defense.2        Moreover, Denz’s trial counsel conceded that the

pathologist’s testimony would not have undermined his chosen trial strategy. Cf. Dugas

v. Coplan, 428 F.3d 317, 331 (1st Cir. 2005) (“‘A tactical decision to pursue one defense

does not excuse failure to present another defense that would bolster rather than detract

from [the primary defense].’”), quoting Foster v. Lockhart, 9 F.3d 722, 726 (8th Cir.

1993) (alteration in Foster).

¶14           Trial counsel is not required to pursue all avenues of investigation and is

permitted to “balance limited resources in accord with effective trial tactics and

strategies.” Harrington, ___ U.S. at ___, 131 S. Ct. at 789. But that principle has no

application here. Nothing in the record suggests counsel lacked sufficient time to consult


       1
        To the extent counsel’s decision was based on his impression that the various
medical experts appeared competent, he admitted he lacked the knowledge to evaluate
their competence. But there are circumstances where counsel’s knowledge about a
particular expert may justify a decision not to obtain an independent opinion. See, e.g.,
Lewis v. Alexander, 11 F.3d 1349, 1351, 1353 (6th Cir. 1993) (counsel not ineffective in
declining to seek another opinion regarding cause of death when counsel “had known
[the testifying deputy coroner] professionally for a number of years, was aware of his
excellent reputation, and had a high regard for his professional judgment”).
       2
       We do not suggest that counsel would be ineffective for failing to “‘“shop” for
a[n expert] who will testify in a particular way.’” Card v. Dugger, 911 F.2d 1494, 1513
(11th Cir. 1990), quoting Elledge v. Dugger, 823 F.2d 1439, 1447 n.17 (11th Cir. 1987).

                                            9
with an independent medical expert, and the Yavapai County Public Defender, who also

acted as the county’s defense contract administrator, testified unequivocally that he

would have granted a request for funds to retain such an expert. Indeed, trial counsel

acknowledged that he could see “no downside” to consulting with an expert before trial.

¶15           Although the trial court relied on Harrington in denying Denz’s claim, we

find that case distinguishable for other reasons as well. First, its persuasive value must be

evaluated in light of its procedural posture: the Supreme Court reviewed a decision by

the Ninth Circuit Court of Appeals of a claim under 28 U.S.C. § 2254 as amended by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Harrington, ___ U.S.

at ___, 131 S. Ct. at 783. That statute requires a defendant seeking habeas corpus relief

from a federal court to demonstrate “that the state court’s ruling on the claim being

presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement” and permits relief only when “there is no possibility fairminded jurists

could disagree that the state court’s decision conflicts with th[e Supreme] Court’s

precedents.” Id. at ___, 131 S. Ct. at 786-87. Thus, review under the AEDPA is highly

deferential, Harrington, ___ U.S. at ___, 131 S. Ct. at 788, whereas we review de novo

the trial court’s ultimate conclusion here.

¶16           Harrington is also factually distinguishable. The defendant there claimed

his attorney had been ineffective in failing to obtain forensic analysis of blood evidence

found at the crime scene, and the defendant provided statements from various experts

suggesting such an analysis might have corroborated his version of events. Id. at ___,

                                              10
131 S. Ct. at 783. The Supreme Court observed that “[b]lood evidence d[id] not appear

to have been part of the prosecution’s planned case prior to trial” and that the state

ultimately presented expert evidence regarding the blood spatters apparently only in

response to defense counsel’s opening statement, which “stressed deficiencies in the

investigation, including the absence of forensic support for the prosecution’s version of

events.” Id. at ___, 131 S. Ct. at 782. The Court determined, in part, that counsel had

made a reasonable tactical decision to avoid emphasizing that blood evidence and making

it a central issue in the case. Id. at ___, 131 S. Ct. at 790. Here, in contrast, it was

apparent from the outset that the state would rely heavily on expert testimony in Denz’s

prosecution—effectively eliminating the strategic option of attempting to minimize that

evidence.

¶17          We instead find Dugas more instructive here. There, the defendants had

been charged with arson. Dugas, 428 F.3d at 319. Defense counsel interviewed the

state’s experts, who had concluded the fire was intentionally set, and determined those

witnesses were credible and the physical evidence was consistent with their opinion. Id.

at 320-21, 322-23. Counsel chose to present a theory that, even if the fire was arson,

Dugas had not been the perpetrator. Id. at 323. But he nonetheless attempted to point out

conflicts in the experts’ opinions and pursue an alternate theory that the fire had not

resulted from arson. Id. Counsel, however, did not consult with an independent expert,

despite having no training in fire investigation and admitting he “did not understand the

basic terminology or techniques of arson investigation.” Id. His cross-examination of

the expert witnesses was largely ineffective, and he “did not ask the kinds of questions

                                           11
that a trained fire investigator or forensic scientist would consider important. Instead, his

questions amounted to an unfocused set of miscellaneous criticisms and evinced his lack

of scientific knowledge.” Id. at 324.

¶18           On review, the First Circuit Court of Appeals concluded counsel had been

ineffective because his investigation was unreasonable.         Id. at 328-29.    The court

observed that “challenging the state’s arson case was critical to Dugas’s defense,” and

noted that his alternative defense—that there had been another perpetrator—was

“difficult to mount and fraught with evidentiary problems.” Id. at 329. The court further

noted that counsel was aware that he did not fully understand the state’s scientific

evidence and lacked sufficient knowledge and experience to challenge it, but took no

steps to rectify his lack of knowledge—despite recognizing that there were “problems

with the state’s arson case” he potentially could exploit if properly prepared. Id. at 330.

¶19           The parallels with this case before us are plain.        The state’s medical

evidence was the cornerstone of its case against Denz: that the particular injuries the

infant suffered could only have resulted from events inconsistent with Denz’s version of

events. Counsel here expressed a belief that he could, by cross-examining the state’s

experts, pursue an alternative defense that the infant’s injuries had been accidental. But

he acknowledged he had only limited experience with medical testimony and with child

abuse cases in general. Rather than seeking the advice of an independent expert, counsel

chose not to pursue any further investigation of the state’s medical evidence. In sum,

despite its strategic gloss, counsel’s decision to not consult with an expert before settling



                                             12
on a defense strategy cannot qualify as a reasoned decision; it therefore fell below

prevailing professional norms.

¶20          We also disagree with the trial court’s conclusion that Denz failed to

demonstrate prejudice resulting from counsel’s deficient performance. To demonstrate

prejudice, Denz was required to “show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. The court correctly noted Denz had fled after

the infant was admitted to the hospital. And we agree with the court that the medical

evidence painted a convincing picture of Denz’s guilt. But, because the independent

expert’s testimony would have directly contradicted much of that medical evidence—

specifically, the severity of the infant’s injuries and their likely cause—counsel’s

deficient failure to secure such testimony undermines our confidence in the outcome.

Indeed, a reasonable jury might have considered the pathologist’s testimony standing

alone as sufficient to raise a reasonable doubt about Denz’s guilt. Because Denz has

demonstrated that counsel’s decision to not consult with an independent medical expert

fell below prevailing professional norms and that counsel’s deficient performance

prejudiced him, he is entitled to a new trial. See State v. Castaneda, 150 Ariz. 382, 396,

724 P.2d 1, 15 (1986).

¶21          Because we grant relief on Denz’s claim of ineffective assistance of

counsel, we need not address his remaining arguments except his claim that the trial court

erred in finding precluded his claim of actual innocence. We agree that claim is not

                                           13
precluded, but nonetheless conclude the court did not err in rejecting it. See State v.

Haight-Gyuro, 218 Ariz. 356, n.5, 186 P.3d 33, 37 n.5 (App. 2008) (reviewing court may

affirm trial court if correct for any reason supported by record).

¶22            Although the trial court was correct that we addressed the sufficiency of the

evidence on appeal, that is not the same as a claim of actual innocence raised pursuant to

Rule 32.1(h), which is not typically subject to preclusion, see Ariz. R. Crim. P. 32.2(b),

and requires a defendant to “demonstrate[] by clear and convincing evidence that the

facts underlying the claim would be sufficient to establish that no reasonable fact-finder

would have found [him] guilty of the underlying offense beyond a reasonable doubt.”

Ariz. R. Crim. P. 32.1(h). But the evidence Denz identified—the pathologist’s report and

various proposed character witnesses—does nothing more than contradict some of the

evidence presented at trial. It does not conclusively demonstrate his innocence. Thus,

the court’s rejection of the claim was supported by the record. See Haight-Gyuro, 218

Ariz. 356, n.5, 186 P.3d at 37 n.5.

                                      Disposition

¶23            For the reasons stated, we grant relief and remand the case to the trial court

for a new trial.

                                               /s/ Peter J. Eckerstrom
                                               PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ Michael Miller
MICHAEL MILLER, Judge

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