State v. Lamb ( 2017 )

NOTICE: NOT FOR OFFICIAL 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DAVID LEE LAMB, Petitioner.
No. 1 CA-CR 16-0316 PRPC
FILED 7-13-2017
Petition for Review from the Superior Court in Maricopa County
No. CR2009-006230-001
The Honorable Danielle J. Viola, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Karen Kemper
Counsel for Respondent
David Lee Lamb, Winslow
Petitioner
STATE v. LAMB
Decision of the Court
MEMORANDUM DECISION
Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.
B E E N E, Judge:
¶1 Petitioner David Lee Lamb 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.
¶2 A jury convicted Lamb of possession of marijuana and
possession of narcotic drugs. He appealed and his convictions were
conditionally affirmed. The case was remanded to the trial court to conduct
an evidentiary hearing on Lamb’s motion to suppress the evidence due to
an illegal stop, detention and arrest. State v. Lamb, 1 CA-CR 09-0622, 2011
WL 3586418 (Ariz. Ct. App. Aug. 16, 2011) (mem. decision). After an
evidentiary hearing, the trial court denied Lamb’s request for suppression.
Lamb appealed and this court affirmed. State v. Lamb, 1 CA-CR 12-0326,
2013 WL 3515129 (Ariz. Ct. App. Jul. 9, 2013) (mem. decision). This court
ruled that the officers had probable cause to arrest Lamb on drug
trafficking, that the officers had reasonable suspicion to stop and detain
him, that the detention was reasonable, and that the trial court did not
abuse its discretion in denying Lamb’s motion to suppress. This court also
upheld the admission of summaries of intercepted calls into evidence,
finding no abuse of discretion in admitting them over counsel’s objection.
¶3 Lamb then filed a petition for post-conviction relief. Finding
no colorable claims, the trial court summarily dismissed his petition, and
this timely petition for review followed. In the petition for review, Lamb
enumerated thirteen different claims, falling into categories of ineffective
assistance of trial and appellate counsel, prosecutorial misconduct and
destruction of evidence, perjury of a witness, and error by this court and
the trial court regarding his motion to suppress.
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STATE v. LAMB
Decision of the Court
¶4 Lamb is precluded from relief based on any claim that was or
could have been raised on appeal. See Ariz. R. Crim. P. 32.2(a)(2). He is
also precluded from relief on issues that were waived at trial or on appeal.
Ariz. R. Crim. P. 32.2(a)(3). This court already decided issues regarding the
trial court’s ruling on suppression of the evidence and the introduction of
the call summaries. Likewise, Lamb’s claims as to prosecutorial
misconduct, perjury of a witness (i.e., credibility) and destruction of
evidence are waived by his failure to raise them on appeal. Thus, these
claims are precluded. To the extent that he attempts to revive them by
claiming ineffective assistance of counsel, Lamb cites no relevant legal
authority, or sufficient facts to support his claims.
¶5 Likewise, Lamb’s claims of ineffective assistance of trial or
appellate counsel are meritless. Appellate counsel is not required to raise
every possible or even meritorious issue on appeal. State v. Herrera, 183
Ariz. 642, 647 (App. 1995). The petitioner must offer evidence of a
reasonable probability that, but for counsel’s failure to raise the issue, the
outcome of the appeal would have been different. Id. The strategic decision
to winnow out weaker arguments on appeal and focus on those more likely
to prevail is an acceptable exercise of professional judgment. State v. Febles,
210 Ariz. 589, 596, ¶19 (App. 2005) (citation and quotations omitted). Lamb
asserts his appellate counsel was ineffective for not challenging the
interception of a call (leading to probable cause to arrest), the introduction
of summaries of the calls, not moving to suppress the evidence of the
wiretap, failing to challenge the use of an “updated” photo/photo sheet in
the evidentiary hearing, and not challenging the introduction of a
“probable cause” packet which no longer existed.
¶6 A review of the briefs in State v. Lamb, 1 CA-CR 12-0326,
shows detailed briefing on the issues relating to what occurred at the trial
court, including the introduction of the summaries. The choice not to argue
issues regarding the wiretap and the interception of the calls were a
strategic choice by counsel based upon the lack of record on the issue in the
trial court. No objections regarding the “updated” photo and introduction
of the probable cause packet were made at the trial court and thus were not
preserved. We do not find that appellate counsel’s strategic choices were
ineffective or created prejudice.
3
STATE v. LAMB
Decision of the Court
¶7 To the extent that Lamb’s claims against his trial counsel
overlap with those of the introduction of the call summaries, the use of the
updated photo and the “probable cause” packet, we note that trial counsel
objected to the summaries and cross-examined on the issues relating to the
stop, detention and arrest, including the photo and packet. Again, Lamb
has not established either that counsel’s choices or examination were
deficient, or that he was prejudiced. We also find no merit to Lamb’s claims
that trial counsel, in addition to challenging the stop, detention and arrest
itself, should have also moved to suppress the call(s) and the wiretap which
resulted in the intercepted calls. To show prejudice from ineffective
assistance of counsel, the defendant is required to show a reasonable
likelihood that a motion to suppress would have succeeded. State v.
Berryman, 178 Ariz. 617, 622 (App. 1994). Lamb refers to no facts in the
record to support the contention that it could have changed the result in his
case. Although Lamb refers to the “application for Chambers wiretap” and
“boilerplate” language, he attaches no supporting documentation for his
conclusory and speculative claim. We do not find that counsel’s choices fall
far below the standard for competent counsel, or that Lamb suffered
prejudice.
¶8 Lamb also claims his trial counsel was ineffective for not
calling Chambers, the alleged drug supplier, and Curry, the alleged courier,
both co-defendants in a separate case, to testify on the motion to suppress.
Lamb attached an affidavit from Chambers in support of his claim. He did
not attach one from Curry. The affidavit purportedly contradicts police
testimony, stating that their conversation was about a “jacket” owned by
Lamb, not about drugs. The affidavit was received by his appellate counsel,
not his trial counsel, well after the matter had been submitted to this court.
Therefore, neither trial nor appellate counsel could have raised the issue in
a timely manner.
¶9 Under any circumstances, we find no prejudice. The
testimony at the suppression hearing clearly indicates the detective, based
upon his training and experience, felt the coded conversations related to the
sale of drugs, specifically PCP. The call summaries admitted into evidence
do not use the word “jacket.” As we stated in our decision upholding the
trial court, for a review of probable cause, we look to the totality of the facts
and circumstances known to police collectively at the time of the arrest.
State v. Lawson, 144 Ariz. 547, 553 (1985) (internal citations and punctuation
omitted). Even assuming Lamb was discussing a “jacket” instead of drugs,
it does not negate the officers’ reliance on the information at their disposal.
Lamb provides insufficient evidence to show the result would be any
different if his counsel was apprised of the information.
4
STATE v. LAMB
Decision of the Court
¶10 Based upon the foregoing reasons, we grant review and deny
relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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