Free Order Adopting Report and Recommendations - District Court of Arizona - Arizona

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

William Floyd Smith, Petitioner, vs. Dora Schriro, et al.,

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No. CV-04-0573-PHX-FJM ORDER

The court has before it petitioner's amended petition for writ of habeas corpus (doc. 30), respondents' answers (docs. 33, 49), petitioner's replies (doc. 44, 54), the Report and Recommendation of the United States Magistrate Judge (doc. 55), and petitioner's objections (doc. 59). After de novo consideration of the issues, we accept the recommended decision of the United States Magistrate Judge pursuant to Rule 8(b), Rules Governing § 2254 Cases. Petitioner was accused of slipping the drug Halcion into his fifteen-year-old employee's drink. He was convicted of "[a]dministering a dangerous drug to another person" in violation of A.R.S. § 13-3407(A)(5). In his first claim for relief, petitioner contends that his right to due process under the Fourteenth Amendment was violated when the trial court failed to instruct the jury on A.R.S. § 13-1205(A), which also prohibits the administration of a dangerous drug to another person, but contains an additional element that the drug be administered without the person's consent. Alternatively, he argues that the trial court erred
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in failing to imply an element of consent in § 13-3407(A)(5). We agree with the magistrate judge that neither the clear language of § 13-3407(A)(5), nor its legislative history, contains an element of consent. Nor is there a conflict between § 13-3407(A)(5) and § 13-1205(A). The trial judge did not err in denying petitioner's request to instruct the jury on § 13-1205(A) because that statute contains an additional element and thus is not a lesser included offense of § 13-3407(A)(5). In sum, we adopt the recommendation of the magistrate judge denying petitioner's first claim for relief with prejudice. In his second claim for relief, petitioner asserts that his right to due process under the Fourteenth Amendment was violated when the trial court issued a reasonable doubt instruction derived from State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995). We accept the magistrate judge's conclusion that the use of the Portillo instruction was not contrary to clearly established federal law, and accordingly deny petitioner's second claim for relief with prejudice. See 28 U.S.C. § 2254(d)(1). Petitioner's third claim for relief alleges a violation of his Sixth Amendment right of confrontation when the trial court admitted statements by the victim's treating physician without an opportunity to cross-examine him. In his treatment notes, the physician stated "[t]he urine drug screen, however, was positive for Benzodiazepines, confirming suspicion that she had 'indeed' been slipped some sort of drug in the sparkling cider." Amended Petition at 7 (doc. 30). The magistrate judge concluded that there was no Confrontation Clause violation because the physician's statements were not testimonial, and alternatively were admissible pursuant to the business records, Fed. R. Evid. 803(6), and medical records, Fed. R. Evid. 803(4), exceptions to the hearsay rule. The Magistrate Judge also concluded that even if the facts presented a Confrontation Clause violation, petitioner failed to demonstrate that the physician's statements produced a "substantial and injurious effect or influence in determining the jury's verdict." Morales v. Woodford, 388 F.3d 1159, 1180 (9th Cir. 2004). The Magistrate Judge concluded that "the evidence presented at trial supported the jury's guilty verdict." Report and Recommendation at 20 n.17. We agree with the Magistrate Judge's recommendation to deny petitioner's third claim for relief with prejudice. -2Case 2:04-cv-00573-FJM Document 61 Filed 08/31/2006 Page 2 of 3

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Petitioner concedes that his fourth claim for relief is procedurally defaulted. Petitioner's Objections at 14. Therefore, we deny this claim with prejudice. Finally, petitioner contends that he was denied his constitutional right to effective assistance of counsel due to trial counsel's failure to object on "foundational grounds" to the admission of the victim's medical records, including the statement by the victim's treating physician that "she had 'indeed' been slipped some sort of drug in the sparkling cider." The Magistrate Judge concluded that petitioner failed to demonstrate either prong of the standard set forth in Strickland v. Wahington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65 (1984). First, counsel's performance did not fall below an objective standard of reasonableness where he fought vigorously to exclude the victim's medical records. Second, even assuming counsel should have objected to the physician's statement on foundational grounds, petitioner cannot show prejudice because the overwhelming evidence of guilt sufficiently supported the jury's verdict. We agree and accordingly accept the recommendation to deny petitioner's fifth claim for relief with prejudice. Based on the foregoing, the court accepts the recommendation of the United States Magistrate Judge (doc. 55). Therefore, IT IS ORDERED DENYING petitioner's amended petition for writ of habeas corpus (doc. 30). DATED this 30th day of August, 2006.

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