Free Response to Amended Habeas Petition - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NUMBER: 14000) AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL CRIMINAL APPEALS SECTION 1275 WEST WASHINGTON STREET PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 E-MAIL: [email protected] (STATE BAR NUMBER: 022246) ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
WILLIAM FLOYD SMITH,
Petitioner,

CIV 04­573­PHX­FJM (MS) RESPONDENTS' SUPPLEMENTAL ANSWER TO PETITIONER'S GROUND V

-vsDORA B. SCHRIRO, et al.,
Respondents.

In compliance with the Court's permission to file a supplemental answer to

17 Petitioner's fifth ground for the habeas writ as established in Document 48, 18 Respondents respectfully submit this supplemental answer to Petitioner's Ground 19 V. 20 21 22 23 24 25 26 27 28
Case 2:04-cv-00573-FJM Document 49 Filed 01/13/2006 Page 1 of 10

DATED this 13th day of January, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

S/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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Memorandum of Points and Authorities In his fifth ground for the habeas writ, Petitioner alleges that his counsel

3 rendered constitutionally ineffective assistance surrounding the admission of 4 alleged hearsay in the victim's medical records. (Doc. 30 at 7­7(b).) Specifically, 5 Petitioner argues that his counsel should have gone beyond forcefully arguing 6 against the admission of all of the victim's medical records and, instead, should 7 have argued for the exclusion of a portion of the treating physician's report on 8 hearsay grounds. The contested evidence concerns Dr. Suchar's diagnosis of the 9 victim's illness after analyzing her urine and writing (as reported in the Arizona 10 Court of Appeals' memorandum decision that Respondents attached to the Answer 11 in Document 33, Exhibit A at page 8) "The urine drug screen . . . was positive for 12 benzodiazepines, confirming suspicion that she [the victim] had indeed been 13 slipped some sort of drug in the sparkling cider." (Doc. 30 at 7­7(b).) 14 By Petitioner's formulation, the doctor should have used the passive voice 15 (something like, "the drug appears in her system"), as opposed to actively 16 assigning fault regarding how the drug showed up in the victim's blood (in the 17 form of writing that someone slipped the victim the drug). Petitioner argues that 18 even though his attorney lost the battle to exclude all of the victim's medical 19 records, his attorney should have further argued for redaction of Dr. Suchar's 20 diagnosis on the ground that the treating physician's alleged statement of causality 21 put the statement outside the hearsay exception for statements of medical diagnosis 22 under Arizona Rule of Evidence 803(4). Petitioner claims that he was prejudiced 23 by his counsel's failure to make such an argument because the jury was required to 24 assess the credibility of Petitioner and the victim (the former denied slipping 25 anything into the victim's cup of apple cider that Petitioner prepared, and the latter 26 testifying that she knew of nothing else in her drink besides the apple cider). 27 Petitioner's failure to prove that his trial attorney provided constitutionally 28 deficient assistance, combined with Petitioners' failure to prove that he endured
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1 prejudice from that allegedly deficient assistance, requires this Court to deny the 2 habeas petition's fifth ground. 3 The clearly established Supreme Court law that governs this dispute is 4 Strickland v. Washington, 466 U.S. 668, 695­96 (1984). See Williams v. Taylor, 5 529 U.S. 362, 391 (opinion of Stevens, J., writing for six Justices) (characterizing 6 Strickland v. Washington's clearly established nature as "past question"). Under 7 the familiar doctrine, Petitioner shoulders the burden to prove both constitutionally 8 ineffective assistance as well as prejudice from the alleged ineffective assistance. 9 Strickland v. Washington, 466 U.S. at 693-97. Petitioner must show that his 10 counsel's conduct fell below that which a reasonably competent attorney would 11 perform. See id. at 695-97. Additionally, Petitioner must prove that there is a 12 reasonable likelihood of a different outcome if his counsel had not erred. See id. at 13 695­96 (requiring a court presented with an ineffective-assistance claim to 14 "consider the totality of the evidence before the judge or jury" and establishing 15 that, "[t]aking the unaffected findings as a given, and taking due account of the 16 effect of the errors on the remaining findings, a court making the prejudice inquiry 17 must ask if the defendant has met the burden of showing that the decision reached 18 would reasonably likely have been different absent the errors"). 19 Moreover, federal constitutional law affords no right to "perfect" advocacy 20 or the best attorney in the jurisdiction: Petitioner is entitled only to the reasonable 21 assistance of counsel. See Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (citing four 22 Supreme Court decisions in reaffirming that "The Sixth Amendment guarantees 23 reasonable competence, not perfect advocacy judged with the benefit of 24 hindsight"). Finally, in addition to the deference to counsel's performance 25 mandated by Strickland v. Washington, the federal post-conviction posture of 26 Petitioner's collateral attack requires an additional level of deference on top of the 27 substantial deference afforded to counsel under the Strickland v. Washington 28 inquiry. See Gentry, 540 U.S. at 6.
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In this case, Petitioner's trial counsel did not perform ineffectively under Petitioner's counsel forcefully argued against the

2 Strickland v. Washington.

3 admission of all of the victim's medical records. (Respondents' Answer, Doc. 33, 4 Exh. I at pp. 20­33 (documenting defense counsel's vigorous objection to the 5 admission of the medical records); Respondents' Answer, Doc. 33, Exh. A at p. 7 6 (demonstrating the Arizona Court of Appeals' recognition that "Defendant 7 objected that the records [of the victim's hospital visit] were hearsay and violated 8 his right to confrontation because [the victim's] treating physician was not 9 available at trial").) 10 With Dr. Suchar unavailable to testify at trial, the jury heard not a single 11 witness actually discuss the contents of the medical records. Although a utopian, 12 ideal, and perfect advocate might have sifted through the heat of battle and argued 13 against the admission of every single questionable statement within the medical 14 records, Petitioner's trial counsel's conduct does not warrant impugning his 15 performance under the standard of Strickland v. Washington. 16 An additional reason that Petitioner's trial counsel's decision not to object to 17 Dr. Suchar's statement does not demonstrate constitutionally deficient performance 18 stems from the fact that such a hypothetical challenge would not have been 19 successful. As demonstrated by the Arizona Court of Appeals' citation when it 20 resolved Petitioner's analogous, substantive hearsay claim on direct review, 21 Petitioner's counsel's hypothetical objection would not have overcome the Arizona 22 courts' adherence to United States v. Yazzie, 59 F.3d 807, 812-14 (9th Cir. 1994). 23 Affirming the United States District Court for the District of Arizona, the Ninth 24 Circuit acknowledged that fault-attributing statements are generally not admissible 25 under the medical-diagnosis exception to the hearsay rule under Federal Rule of 26 Evidence 803(4), but also noted that the Ninth Circuit has adopted an exception for 27 child-sexual-abuse cases. Yazzie, 59 F.3d at 812. The Ninth Circuit decision 28 contains language that suggests that a child-victim and the child-victim's parent
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1 hold a strong incentive to truthfully disclose what information they know of the 2 child's injuries in order to facilitate an accurate diagnosis, even outside the sexual3 abuse context, and a state court's implicit broadening of this exception hardly 4 mandates a new trial. See Yazzie, 59 F.3d at 813 ("In most cases, we believe that 5 statements to a doctor by a parent of an injured child could easily qualify as a 6 statement for the purpose of obtaining a proper medical diagnosis"). 7 Furthermore, Dr. Suchar did not make the statement in the context of trying 8 to pin fault or liability on anyone. Dr. Suchar's statement does not name anyone as 9 the person who slipped the girl Halcion. The victim's mother rushed her to the 10 hospital because her daughter appeared drugged: read in context, the physician was 11 not trying to identify how the drug came into the victim's system­­the physician 12 was simply determining whether or not the drug Halcion happened to be present in 13 the victim's bloodstream at all. Any reasonable juror would understand that the 14 presence of Halcion in someone's blood means simply that there was Halcion in 15 someone's blood, not that the doctor was reconstructing the past regarding how the 16 drug got there. In other words, the physician never made the statement in the 17 context of distinguishing between, say, a drug that became present in the victim's 18 bloodstream from a surreptitious addition to the victim's drink or, instead, a 19 voluntary decision on the victim's part to ingest the drug. 20 Even if this Court believes that counsel's performance justifies the aspersion 21 of constitutionally ineffective performance, however, the state courts' ruling that 22 Petitioner endured no prejudice from the performance in no way amounted to an 23 unreasonable application of clearly established Supreme Court law under 24 § 2254(d)(1). The state-court decision that addressed Petitioner's ineffective25 assistance claim was the trial court's ruling on post-conviction review. 26 (Respondents' Answer, Doc. 33, attaching Exhibit Y.) The Arizona Court of 27 Appeals' summary affirmance of the trial court's post-conviction ruling requires 28 this Court to "look through" to the last-reasoned state-court opinion on the subject.
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1 See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (establishing the presumption 2 that, when "the last reasoned opinion on the claim explicitly imposes a procedural 3 default, we will presume that a later decision rejecting the claim did not silently 4 disregard that bar and consider the merits"); Barker v. Fleming, 423 F.3d 1085, 5 1091-92 & n.3 (9th Cir. 2005) (citing Nunnemaker in recognizing that, "[w]hen 6 more than one state court has adjudicated a claim, we analyze the last reasoned 7 decision"). 8 Petitioner has failed to prove that this jury would be so influenced by Dr. Read in 9 Suchar's statement that the guilty verdict hinged on this comment.

10 context, the thrust of the doctor's comment referred only to the fact that the 11 victim's urinalysis revealed that benzodiazepines showed up in her urine, not that 12 the doctor ever undertook an investigation to figure out how the drug reached the 13 victim's urine. 14 Moreover, as the trial court explained in rejecting Petitioner's similar claim 15 on post-conviction review (framed in the context of accusing his trial counsel of 16 not objecting to the specific admission of the treating physician's statement), "the 17 other evidence substantially and overwhelmingly supported a finding that the 18 Petitioner administered a dangerous drug": 19 20 21 22 23 24 25 26 27 28
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(6) At trial, the evidence included: (a) R.T.'s statement that Petitioner prepared the apple cider drink in his kitchen. (b) R.T.'s statement that she drank the apple cider Petitioner gave her and that she began to feel dizzy. (c) R.T.'s statement that after she tried to sit up, Petitioner told her to "stop fighting it." (d) R.T.'s statement that thereafter she recalled nothing else that happened at Petitioner's residence.

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(e) Petitioner's statement to R.T.'s mother that R.T. had not felt so well so she laid down and rested during the afternoon at Petitioner's residence. (f) Medical evidence that the drug halcion found in R.T.'s urine was a sedative with a strong hypnotic property which can induce sleep and cause dizziness and lightheadedness. (g) Police testimony that they found an empty halcion prescription bottle in Petitioner's kitchen. (h) Petitioner's statement to the police that: (i) he had poured cider for R.T. at his residence but within her view; (ii) that R.T. was feeling drowsy and began to act "goofy"; (iii) Petitioner told R.T. to lie down; (iv) Petitioner denied giving R.T. halcion; and (v) Without being asked, Petitioner volunteered a denial of touching R.T. (i) Petitioner's written letter statement asking an acquaintance to testify falsely that R.T. had approached and asked where she could get drugs. (7) The Court finds that despite a partial statement by the treating physician who lacked knowledge as to method of ingestion, the other evidence substantially and overwhelmingly supported a finding that the Petitioner administered a dangerous drug. Assuming that such partial statement would have been excluded upon objection, there is no reasonable likelihood that the resulting conviction from the trial would have been different. The other evidence included Petitioner's own statements that he provided the apple cider to R.T., that she then became drowsy and laid down but that he did not give R.T. halcion. The evidentiary sequence and

Case 2:04-cv-00573-FJM

Document 49

Filed 01/13/2006 7

Page 7 of 10

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consequences to R.T. supported administering the dangerous drug by Petitioner. (Doc. 33, Exh. Y at 2­4.) Finally, Petitioner's claim hinges on the faulty premise that, because the credibility of each side happened to be at stake in the trial, the two sides were necessarily left in equipoise. Not so. Not only was the jury perfectly entitled to assess the two sides' credibility and ultimately believe the testimony of the victim, but this jury heard the uncontested testimony that Petitioner wrote some letters to a friend in which Petitioner urged the friend to lie at trial by claiming that the victim approached this friend and asked this friend for drugs. On this record, the

statement of the treating physician did not substantially and injuriously influence the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). In sum, Petitioner has failed to prove that his trial's outcome "would reasonably likely have been different" under Strickland v. Washington if only the jury's attention had been drawn to a statement that had never been discussed at trial: that Dr. Suchar's conclusion that Halcion had been slipped into the victim's drink was not the doctor's expression of fault or causality, but was only the doctor's expression that a drug happened to be in the victim's bloodstream. 466 U.S. at 695­96. Respondents also respectfully apply their previously explained arguments against Petitioner's Confrontation Clause claim (and the explanation of how any perceived error was harmless) from Respondents' Answer at Document 33, pages 18­23 in order to illustrate the absence of constitutional prejudice under the clearly established law of Strickland v. Washington. See 466 U.S. at 695­96 (requiring a court presented with an ineffective-assistance claim to "consider the totality of the evidence before the judge or jury" and establishing that, "[t]aking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors").
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The state courts reasonably and fairly applied the controlling federal law on

2 the right to the effective assistance of counsel, justifying denial of Ground V and 3 the remaining claims in the habeas petition. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DATED this 13th day of January, 2006.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

S/AARON J. MOSKOWITZ ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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CERTIFICATE OF SERVICE

2 I hereby certify that on January 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and deposited 3 for mailing the attached document and transmittal of a Notice of Electronic Filing to the following non-registered CM/ECF participant: 4 WILLIAM FLOYD SMITH #130587 5 A.S.P.C. ­ Florence/South Unit 3A2 P. O. Box 8400 6 Florence, AZ 85232 7 Petitioner Pro Se 8 9 S/AARON J. MOSKOWITZ 10 11 CRM96­0446 123396 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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