State of Arizona v. Darrel Peter Pandeli , 242 Ariz. 175 ( 2017 )

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Plaintiff/Petitioner,
V.
DARREL PETER PANDELI,
Defendant/Respondent.
No. CR-15-0270-PC
Filed May 15, 2017
On Review from the Superior Court in Maricopa County
The Honorable Robert L. Gottsfield, Judge
No. CR1993-008116
REVERSED
COUNSEL:
Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Lacy Stover Gard (argued), Chief Counsel, Capital Litigation
Section, Jason Easterday, Assistant Attorney General, Phoenix, Attorneys
for State of Arizona
Kenneth S. Countryman, Kenneth S. Countryman, P.C., Tempe; and Julie S.
Hall (argued), Oracle, Attorneys for Darrel Peter Pandeli
Amy P. Knight, Kuykendall & Associates, Tucson; Amy M. Kalman,
Maricopa County Public Defender’s Office, Phoenix; David J. Euchner
(argued), Pima County Public Defender’s Office, Tucson; and Amy S.
Armstrong, Tucson, Attorneys for Amici Curiae Arizona Attorneys for
Criminal Justice and Arizona Capital Representation Project
STATE v. PANDELI
Opinion of the Court
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
JUSTICE BOLICK, opinion of the Court:
BACKGROUND
¶1 Darrel Pandeli was sentenced to death in 1998 for the murder
of Holly Iler. This Court affirmed the conviction and death sentence. State
v. Pandeli (Pandeli I), 200 Ariz. 365, 382–83 ¶ 94, 26 P.3d 1136, 1153–54 (2001).
However, the United States Supreme Court vacated the judgment and
remanded the case for further consideration in light of Ring v. Arizona, 536
U.S. 584 (2002). Pandeli v. Arizona (Pandeli II), 536 U.S. 953 (2002) (mem.).
This Court vacated the death sentence and remanded to the trial court for a
new sentencing hearing. State v. Pandeli (Pandeli III), 204 Ariz. 569, 572 ¶ 11,
65 P.3d 950, 953 (2003). On remand, the jury found that Pandeli should be
put to death. This Court affirmed. State v. Pandeli (Pandeli IV), 215 Ariz.
514, 533 ¶ 85, 161 P.3d 557, 576 (2007).
¶2 In July 2011, Pandeli’s post-conviction relief (“PCR”) attorney
filed a petition alleging multiple trial court errors, prosecutorial abuses, and
fifteen claims of ineffective assistance of counsel (“IAC”). In September
2012, the PCR court largely denied the petition but set an evidentiary
hearing on the IAC claims. The PCR court subsequently granted relief on
all those claims as well as an additional due process violation, setting aside
Pandeli’s death sentence, and ordering a new aggravation and penalty
phase sentencing trial. The State sought review from this Court. We have
jurisdiction pursuant to article 6, section 5(3) of the Arizona Constitution
and A.R.S. §§ 13-755 and 13-4031. For the reasons set forth below, we
reverse.
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Opinion of the Court
DISCUSSION
¶3 We examine a PCR court’s findings of fact to determine if they
are clearly erroneous. State v. Cuffle, 171 Ariz. 49, 51, 828 P.2d 773, 775
(1992). Arizona Rule of Criminal Procedure 32.8(d) requires a court to
“make specific findings of fact, and . . . state expressly its conclusions of law
relating to each issue presented.” See State v. Tankersley, 211 Ariz. 323, 324,
121 P.3d 829, 830 (2005). Unfortunately, the PCR court made few specific
findings and failed to connect them to its conclusions on many of the issues
presented. The court failed to make findings for some claims at all. Most
problematic, the PCR court did not explain how Pandeli suffered prejudice
from any of the acts or omissions it deemed to constitute IAC or to violate
due process. Cf. Strickland v. Washington, 466 U.S. 668, 687 (1984)
(recognizing prejudice as an element for an IAC claim). As a result, our
ordinary deference to the PCR court’s factual findings is largely
inapplicable here. Instead, we have reviewed the record and conclude that
Pandeli did not establish IAC or prove his due process claim.
A. IAC Claims
¶4 Whether Pandeli’s lawyers “rendered ineffective assistance is
a mixed question of fact and law.” State v. Denz, 232 Ariz. 441, 444 ¶ 6, 306
P.3d 98, 101 (App. 2013). We review the court’s legal conclusions and
constitutional issues de novo. Id.; see also State v. Newell, 212 Ariz. 389, 397
¶ 27, 132 P.3d 833, 841 (2006). However, we ultimately review a PCR court’s
ruling on a petition for post-conviction relief for an abuse of discretion.
State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). An abuse of
discretion occurs if the PCR court makes an error of law or fails to
adequately investigate the facts necessary to support its decision. State v.
Wall, 212 Ariz. 1, 3 ¶ 12, 126 P.3d 148, 150 (2006); State v. Douglas, 87 Ariz.
182, 187, 349 P.2d 622, 625 (1960).
¶5 The State contends the PCR court erred in granting relief on
Pandeli’s IAC claims because it did not properly apply the highly
deferential standards for reviewing such claims under the two-pronged test
set forth in Strickland, 466 U.S. at 687. “Under Strickland, we first determine
whether counsel’s representation ‘fell below an objective standard of
reasonableness.’” Hinton v. Alabama, 134 S. Ct. 1081, 1088 (2014) (quoting
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Opinion of the Court
Padilla v. Kentucky, 559 U.S. 356, 366 (2010)). This inquiry focuses on the
“practice and expectations of the legal community,” and asks, in light of all
the circumstances, whether counsel’s performance was reasonable under
prevailing professional norms. Id.
¶6 Next, a defendant must “show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 1089
(quoting Strickland, 466 U.S. at 694). But “[i]t is not enough for the
defendant to show that the errors had some conceivable effect on the
outcome of the proceeding,” because then “[v]irtually every act or omission
of counsel would meet that test.” Strickland, 466 U.S. at 693. Although a
defendant must satisfy both prongs of the Strickland test, this Court is not
required to address both prongs “if the defendant makes an insufficient
showing on one.” Id. at 697.
¶7 Thus, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 689 (citation and internal quotation marks omitted). A
defendant does so by showing that his counsel’s performance fell outside
the acceptable “range of competence,” and did not meet “an objective
standard of reasonableness.” Id. at 687–88. In short, reviewing courts must
be very cautious in deeming trial counsel’s assistance ineffective when
counsel’s challenged acts or omissions might have a reasonable
explanation.
¶8 The PCR court did not apply this deferential standard of
review, instead repeatedly second-guessing counsel’s strategy decisions.
Simply disagreeing with strategy decisions cannot support a determination
that representation was inadequate. Id. at 689 (“A fair assessment of
attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time.”). We proceed to assess each of the PCR court’s findings of
inadequate assistance in turn.
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Opinion of the Court
1. Failure to cross-examine Dr. Bayless
¶9 Many of the PCR court’s findings pertain to the fact that
Pandeli’s counsel did not cross-examine the State’s key witness, Dr. Brad
Bayless, a psychologist, during the penalty phase. Pandeli argued five
general types of mitigation: he was physically and sexually abused as a
child, began abusing drugs and alcohol at an early age, suffered from a
cognitive disorder, behaved well while in prison, and could maintain
positive relationships. Pandeli IV, 215 Ariz. at 531–33 ¶¶ 70–83, 161 P.3d at
574–76. In rebuttal, the State called Dr. Bayless to testify about Pandeli’s
mental health and other characteristics. Defense counsel did not cross-
examine Dr. Bayless. The PCR court observed,
Dr. Bayless is a state’s witness who routinely
testified for the state in death penalty cases. In
most cases, Dr. Bayless testifies that a defendant
is psychotic and that there’s no saving him. Dr.
Bayless frequently doesn’t have any scientific
basis for his opinion. He used projective tests
that are subjective and should not be used in a
death penalty case. His testing was not
appropriate and misleading.
In this vein, the PCR court engaged in second-guessing defense counsel’s
strategic decision to forgo cross-examination of Dr. Bayless and rebut his
testimony with their own expert. Cf. Strickland, 466 U.S. at 690 (“[S]trategic
choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.”). Moreover, the court
made sweeping generalizations unmoored to specific findings of IAC.
¶10 The PCR court further found, based on the testimony of
attorney Michael Reeves, Pandelli’s professional standards expert, that
defense counsel “should have cross-examined Dr. Bayless or somehow
dealt with the information and testimony he presented. [Defense counsel]
did not counteract any information presented by Dr. Bayless.”
¶11 Pandeli’s lead counsel, Gary Shriver, acknowledged that the
failure to cross-examine Dr. Bayless was a spur-of-the-moment decision
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Opinion of the Court
resulting from “wrongheadedness.”1 Co-counsel Dawn Sinclair testified
that they were not fully prepared to deal with Dr. Bayless because they did
not know what questions to ask about his report. Thus, the court found
that Pandeli’s attorneys were unprepared to interview or cross-examine Dr.
Bayless or challenge the unsupportable conclusions he made. The court
further found that “both attorneys agreed that the decision [not to cross-
examine Dr. Bayless] was not strategic and [was] a failure of counsel to
adequately defend [Pandeli].”
¶12 Considering the entire record, however, we conclude that
Pandeli failed to prove IAC, and the PCR court erred by finding otherwise.
Although the decision not to interview Dr. Bayless was “made on the fly,”
it was an informed and defensible one made on the basis of extensive
investigation and preparation. At the PCR hearing, Shriver testified that he
had “known Dr. Bayless since [he] started practicing,” and he believed that
as an adversary witness, Dr. Bayless was “hard to control.” He also
believed that Dr. Bayless “was known to sandbag and bring out more . . .
harmful stuff during a defense cross.” Shriver also found that when Dr.
Bayless would testify before a jury “there was a performance” and “[i]t
wasn’t simply providing testimony as an expert,” but rather Dr. Bayless
was “wait[ing] [to] bring even more, bring the real guns out in cross.”
Therefore, Shriver believed “that simply cross-examining [Dr. Bayless]
before a jury is not necessarily the key. It doesn’t mean that you are going
to successfully examine him at least in my opinion.”
¶13 Shriver explained “what was on [his] mind” when he decided
to forgo cross-examination, namely that he could prevent Dr. Bayless from
further harming Pandeli’s case on cross-examination, as he was known to
do. Shriver believed that Dr. Bayless’s direct examination was not nearly
as harmful as the defense anticipated. Thus, Shriver was worried that Dr.
Bayless would use cross-examination as an opportunity to “thrust and
parry to get his points across.” Finally, by declining cross-examination,
Shriver would deprive the State of an opportunity for redirect.
1 Neither Gary Shriver nor his co-counsel, Dawn Sinclair, represented
Pandeli at his first trial. Dr. Bayless testified during the penalty phases at
both of Pandeli’s trials.
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Opinion of the Court
¶14 The record fails to show defense counsel was unprepared to
cross-examine Dr. Bayless. To prepare for the resentencing trial, Shriver
compiled transcripts of Dr. Bayless’s testimony from other cases, discussed
with other defense attorneys how to deal with Dr. Bayless, and interviewed
him several times over three days. Shriver testified that he and Sinclair
prepared an outline and were prepared to cross-examine Dr. Bayless when
trial started. He also believed that he had somewhat impeached Dr.
Bayless’s findings through the testimony of Pandeli’s expert, Dr. Mark
Cunningham. Therefore, Shriver and Sinclair, after a brief discussion, chose
to forgo cross-examination to prevent Dr. Bayless from further damaging
Pandeli’s case. Based on their research and experience with Dr. Bayless,
counsel reasonably concluded that a cross-examination would give the
expert a chance to inflict greater damage than he had on direct. See State v.
Farni, 112 Ariz. 132, 133, 539 P.2d 889, 890 (1975) (“The failure of defense
counsel to cross-examine one witness and question others on certain points
was also a tactical decision and is not evidence of incompetence.”).
¶15 The PCR court erred by substituting its after-the-fact
judgment for counsel’s during trial. “Disagreements as to trial strategy or
errors in trial will not support a claim of ineffective assistance of counsel as
long as the challenged conduct could have some reasoned basis.” State v.
Meeker, 143 Ariz. 256, 260, 693 P.2d 911, 915 (1984). Counsel clearly had, at
a minimum, “some reasoned basis,” State v. Nirschel, 155 Ariz. 206, 209, 745
P.2d 953, 956 (1987), for forgoing cross-examination of Dr. Bayless. Thus,
the PCR court overlooked evidence that the decision not to cross-examine
Dr. Bayless was the product of a reasoned (even if mistaken) strategic
judgment. See Strickland, 466 U.S. at 690 (“strategic choices made after
thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable”).
¶16 Moreover, counsel did not leave Dr. Bayless’s testimony
completely uncontested, but rather used their own defense experts to rebut
significant portions of his testimony. Contra United States v. Cronic, 466 U.S.
648, 659 (1984) (“[I]f counsel entirely fails to subject the prosecution’s case
to meaningful adversarial testing, then there has been a denial of Sixth
Amendment rights that makes the adversary process itself presumptively
unreliable.”). Although defense counsel, in hindsight, may have “dropped
the ball” by not calling Dr. Cunningham back to the stand to reinforce his
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Opinion of the Court
earlier testimony that contradicted Dr. Bayless, that mistake did not
constitute IAC given the fact that counsel did impeach much of Dr.
Bayless’s testimony through other witnesses.
¶17 For example, as Shriver testified, counsel laid the
groundwork to impeach Dr. Bayless through Dr. Cunningham by:
[Setting] the table to show that a lot of these
concepts that Bayless would testify in the State’s
case were not sound, under sound psychology.
Now, I didn’t feel that I had completely done
away with any harm from Bayless’ testimony by
asking Dr. Cunningham certain questions, but I
felt we had at least provided a basis for the jury
to understand that Bayless should not be given
as much credibility as he would have liked or
the State would have liked.
Although counsel did not fully impeach Dr. Bayless’s testimony through
Dr. Cunningham, he strategically elicited information that put the jury on
notice that Dr. Bayless’s methods and testimony might not be accurate.
¶18 Defense counsel anticipated that Dr. Bayless would testify
that Pandeli malingered during his psychological tests. Therefore, counsel
attempted to preemptively combat that testimony by having Dr. Marc
Walter testify that he believed Pandeli was “putting forward good effort”
in the tests. Dr. Walter also testified that he disagreed with Dr. Bayless’s
diagnosis that Pandeli had a mild learning disability, stating that Pandeli
had a “very serious learning disability” and did not think things through
“because of the frontal lobe dysfunction.”
¶19 Dr. Bayless’s use of projective tests was called into question
at the PCR hearing by several witnesses. Michael Reeves, Dr. Weinstein (a
psychologist specializing in clinical and forensic neuropsychology), and Dr.
Jones (a forensic psychologist) all criticized Dr. Bayless’s use of projective
tests because they do not have standardized scores. At trial, Dr. Cheryl
Karp also testified that some of the tests are not appropriate to “generate . . .
a diagnosis,” which served to impeach Dr. Bayless’s findings.
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Opinion of the Court
¶20 Finally, Dr. Bayless’s determination that Pandeli has
antisocial personality disorder was called into question at trial. Counsel
elicited testimony from Dr. Cunningham that Pandeli “[p]otentially . . .
would meet the adult criteria for anti-social personality disorder,” but that
diagnosis was “irrelevant” for sentencing determination because it did not
inform “how [Pandeli] came to be damaged.” In closing, counsel reiterated
this point, telling the jury that “[t]he State and Dr. Bayless missed the point
entirely. . . . That [Pandeli] has antisocial personality disorder doesn’t rebut
a single thing that the defense had put on. . . . [T]hat diagnosis tells you
nothing with respect to this sentencing proceeding.”
¶21 The decision to use other expert testimony to attempt to
preemptively impeach parts of Dr. Bayless’s testimony and then forgo
cross-examination was a strategic decision that defendant has not
demonstrated falls below the level expected of a reasonably competent
defense attorney. Cf. State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677
(1984) (no IAC if counsel’s decision had a reasoned basis rather than the
result of “ineptitude, inexperience, or lack of preparation”). No finding was
made that the decision lacked “some reasoned basis,” and the evidence
would not support such a finding.
2. Failure to obtain brain imaging scans
¶22 The PCR court found that defense counsel’s failure to present
medical documentation of brain injury and brain dysfunction constituted
IAC. After the PCR hearing, the court found that “[o]bjective testing would
have shown that [Pandeli] had frontal lobe impairment and it was causally
connected to his childhood and development issues.”
¶23 Pandeli argues that no strategic reason existed to forgo a brain
scan to document Pandeli’s brain damage, especially a quantitative
electroencephalogram (“QEEG”) scan. The State argues that counsel called
two experts who testified that Pandeli had a brain injury, and did not need
to present additional and cumulative evidence of brain injury. We conclude
the decision not to present further documentation of brain injury and
dysfunction was a strategic choice and did not constitute IAC.
¶24 Defense counsel hired Dr. Walter to perform a
neuropsychological evaluation of Pandeli, which included reviewing
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Opinion of the Court
medical records, interviewing Pandeli, and giving him psychological and
neuropsychological tests. Dr. Walter testified at trial that Pandeli’s frontal
lobe was impaired. Dr. Walter did not use any documented brain scans in
his testing, such as magnetic resonance imaging (“MRI”), computerized
tomography (“CT scan”), positron emission tomography (“PET scan”), or
QEEG to make his diagnosis. He testified that he did not recommend these
types of brain scans because “there’s not necessarily a good correlation
between these tests and actually . . . what a person’s cognitive abilities are.
So . . . there is controversy about whether . . . they are helpful in terms of
forensic cases like this one.” Dr. Walter also testified that these scans could
produce “false positives and false negatives,” so he must administer the
same neuropsychological tests despite whatever results come from a brain
scan. Dr. Cunningham agreed at trial, reiterating that brain scans can
produce false positives and negatives, and that the findings from the
neuropsychological tests that were administered could “stand on their
own.”
¶25 At the PCR hearing, Dr. Weinstein testified that Dr. Walter
was a “very qualified neuropsychologist” and used the right
neuropsychological tests to evaluate Pandeli. He testified that brain scans
were unnecessary because frontal lobe impairment can be diagnosed solely
on neuropsychological testing, and confirmed that Dr. Walter had
performed such testing. He also stated that very few psychologists used
QEEG scans in their practice in 2006 and that the scan was not required to
diagnose frontal lobe impairment and was not a substitute for a
neuropsychological evaluation.
¶26 Given this record, the decision to forgo brain scans was a
reasoned, strategic decision by Pandeli’s counsel and does not establish
IAC.
3. Failure to present sufficient mitigation and develop a nexus
¶27 The PCR court found that defense counsel’s “failure to
conduct a thorough investigation of the defendant’s background and
present sufficient mitigating evidence in an attempt to establish a nexus
between the mitigation and the crime” constituted another instance of IAC.
The court found that trial counsel “failed to have psychological or
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Opinion of the Court
neuropsychological evaluations done” and “failed to hire a psychologist or
neuropsychologist to explore the various different aspects of how Mr.
Pandeli’s childhood was destructive of his entire personality.” It also found
that counsel were ineffective because they failed to establish a causal
relationship “between brain impairment and the death penalty” and “failed
to develop a nexus between the psychologist’s reports and Mr. Pandeli’s
crimes.” Finally, it concluded that counsel “did an insufficient
investigation into [Pandeli’s] background, to understand how it related to
the offense,” which “fell short of prevailing professional norms.” Thus, the
court determined that “comparing the totality of the evidence that actually
was presented to the jury with the totality of the evidence that might have
been presented had counsel acted differently, makes it highly probable that
the outcome of the proceedings might have been different.”
¶28 The record does not support the court’s finding. Counsel
testified that they were aware that the United States Supreme Court held in
Tennard v. Dretke, 542 U.S. 274 (2004), that establishing a causal nexus
between the mitigating evidence and the crime is not required, but that they
believed the jury and this Court would give the mitigation evidence more
weight if a nexus was established. See State v. Roseberry, 237 Ariz. 507, 509
¶ 12, 353 P.3d 847, 849 (2015) (“[A]ll mitigation evidence must be
considered and . . . its causal relationship to the crime goes to the weight to
be given to the evidence.”). Therefore, they attempted to prove a causal
nexus by having a neuropsychological evaluation performed by Dr. Walter
and a psychological evaluation performed by Dr. Cunningham, and both
doctors testified at trial how Pandeli’s upbringing negatively affected his
personality and behavior as an adult. The three mental health experts
called by the defense each testified about the causal nexus between
Pandeli’s traumatic childhood and mental impairment and the murder he
committed. Additionally, in closing, counsel argued that Pandeli’s
childhood and mental impairments contributed to Iler’s murder.
¶29 This Court acknowledged that Pandeli:
attempted to tie his mental impairment to the
crime. Dr. Walter testified that frontal lobe
impairment makes a person act impulsively,
can cause violence, and could have led to the
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murder of Iler. Similarly, Dr. Cunningham
testified that the murders of both Humphreys
and Iler were disorganized, demonstrating that
Pandeli's impairment may have played a role in
them.
Pandeli IV, 215 Ariz. at 533 ¶ 79, 161 P.3d at 576.
¶30 Pandeli has not identified any relevant aspect of his
background left uninvestigated or unpresented. The testimony provided
by Dr. Weinstein and Dr. Jones at the PCR hearing closely paralleled the
testimony given by Dr. Cunningham and Dr. Walter at trial. Both sets of
experts concluded that Pandeli’s childhood trauma and neurological
impairments explained his criminal conduct. Although no additional or
new investigation was conducted into Pandeli’s background, Dr. Weinstein
and Dr. Jones interviewed Pandeli and relied on the records compiled by
defense counsel for the 2006 resentencing proceeding. While there were
minor differences in the testimony given by the experts at trial and the PCR
hearing, the trial experts merely used different methodology to reach the
same conclusions as the PCR experts. Thus, the PCR court’s findings
related to the issue of failure to investigate mitigation evidence properly are
also clearly wrong. Ultimately, Pandeli did not meet his burden of proof
that counsel was deficient with regard to this issue.
4. Failure to object to other act evidence
¶31 The PCR court found IAC because counsel failed to challenge
the State’s rebuttal evidence during the penalty phase of the trial,
specifically evidence that Pandeli’s former girlfriend, L.R., alleged he had
molested her daughter. This was an informed, strategic decision that did
not constitute IAC.
¶32 When L.R. was unavailable to testify at resentencing, the State
read L.R.’s interview statements to the jury during rebuttal. The court
granted defense counsel’s motion to exclude L.R.’s statements regarding
other persons’ allegations of Pandeli’s prior bad acts that she had heard
about. However, counsel did not object to the State admitting L.R.’s
statement about what Pandeli did to her daughter.
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¶33 At the PCR hearing, Shriver explained that he originally tried
to limit the State’s rebuttal evidence during the penalty phase to only the
evidence that rebutted the mitigation evidence he planned to provide.
However, the trial court ruled that based on A.R.S. § 13-751(C), the State
could present any relevant and reliable hearsay as rebuttal evidence, even
if unrelated to the mitigation evidence. Shriver testified at the PCR hearing
that this put them “on notice . . . that a lot of this stuff is coming in.” With
that in mind, counsel believed that “since the jury is going to hear [evidence
of Pandeli’s other acts,] . . . [counsel] attempted to show . . . that’s not that
unusual given the circumstances of Mr. Pandeli’s upbringing.” Therefore,
counsel attempted to show that the alleged molestation was a product of
damage that Pandeli sustained early in his childhood. Given the trial
court’s ruling on relevant and reliable hearsay, it is understandable that
counsel accepted admission of L.R.’s statements and attempted to use them
to bolster his mitigation evidence. See James v. Borg, 24 F.3d 20, 27 (9th Cir.
1994) (“Counsel’s failure to make a futile motion does not constitute
ineffective assistance of counsel.”).
5. Failure to challenge aggravating factors
¶34 The PCR court did not make specific findings of fact on the
prior homicide and the heinous and depraved aggravators, but found that
counsel “failed to challenge the aggravators offered by the state. This
includes aggravators in regard to infliction of gratuitous violence,
senselessness of the crime and the helplessness of the victim.” See State v.
Gretzler, 135 Ariz. 42, 52, 659 P.2d 1, 11 (1983) (relishing of the murder,
infliction of gratuitous violence, mutilation of victim, senselessness of the
crime, and helplessness of victim are factors in evaluating heinous and
depraved aggravator). At resentencing, the State sought to prove the (F)(2)
aggravator—that Pandeli had been “previously convicted of a serious
offense”—by introducing evidence of his 1996 conviction for the second-
degree murder of Teresa Humphreys in 1992. See Pandeli I, 200 Ariz. at 370
¶¶ 2–3, 375 ¶ 33, 26 P.3d at 1141, 1146. The State also sought to prove the
(F)(6) aggravator—that Pandeli committed the murder of Iler “in an
especially heinous, cruel or depraved manner”—by introducing evidence
that Pandeli mutilated her body and kept souvenirs from the murder. The
jury found that the State proved both aggravating factors, as did this Court
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Opinion of the Court
on independent review. Pandeli IV, 215 Ariz. at 531 ¶ 69, 161 P.3d at 574.
¶35 Defense counsel moved to dismiss both the (F)(2) and (F)(6)
aggravators in pretrial motions. Counsel testified at the PCR hearing
that, after the motions were denied, they decided not to challenge the
aggravators in order to maintain credibility with the jury. Counsel
testified that “[i]t was dead certain” that the State was going to be able
to prove the (F)(2) aggravator pertaining to a prior serious offense
because Pandeli had already been convicted of second-degree murder of
Humphreys. Counsel also testified that regardless how they attempted
to challenge the (F)(6) aggravator, it would be clear that Iler’s nipples had
been removed. Thus, counsel continued, if they
were to somehow try to argue that . . . if it
wasn’t done as mutilation, which would be . . .
post-death[,] then they would have been done
while the woman was still alive, which would
have then likely gotten into the gratuitous
violence situation, so the way we analyzed it is
if we were going to lose on that no matter what
we did, . . . to spend a lot of time having [the
jury] parse whether or not this person was . . .
depraved loses something.
¶36 Thus, counsel determined that “fighting . . . to fight the fight
was to me not a wise thing” because he would have “lost credibility” in the
eyes of the jurors if he had futilely challenged the (F)(6) aggravator. Given
this record, Pandeli did not prove deficient performance by counsel.
6. Failure to object to rebuttal evidence
¶37 The PCR court found that counsel’s “failure to object to [the]
state’s presentation of violent sex and fantasies as acknowledged by the
Supreme Court,” constituted IAC. However, the PCR court failed to make
specific findings on this claim in its final ruling, as required by Rule 32.8(d).
Regardless, the record does not support a finding of IAC.
¶38 During the penalty phase rebuttal, the State read interview
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Opinion of the Court
statements from L.R. to the jury about Pandeli’s violent sexual fantasies,
including his fantasy of killing a man who had abused him. Another former
girlfriend testified that, on two separate occasions, Pandeli sexually
assaulted her when he tied her up and pressed the “flat edge” of a knife
against her throat. On appeal, this Court concluded that admission of this
evidence did not constitute fundamental error. Pandeli IV, 215 Ariz. at 528
¶ 47, 161 P.3d at 571.
¶39 At the PCR hearing, Shriver testified that, at the time, he
believed the testimony was admissible because of the trial court’s ruling
that the State was permitted to introduce any relevant and reliable hearsay
evidence to demonstrate why Pandeli should not be shown leniency.
Nevertheless, he moved the court to limit the content of this evidence.
Shriver testified that the court denied his motion so he was “forced then to
work that into our theory,” and that the defense prepared for and cross-
examined the former girlfriend on her testimony.
¶40 The court also found that defense counsel’s failure “to object
to [the] state’s rebuttal evidence of violent sex, or to defendant’s fantasies
of murder, opened the door to testimony of the prior murder and the photos
of the Humphreys murder.” But counsel repeatedly filed motions to
preclude or limit the testimony that the State sought to introduce.
However, the State was permitted to introduce evidence that Humphreys’
body was found on a sidewalk, the scene indicated that she had been killed
there, her body had multiple stab wounds, she had cuts to her throat and
defensive wounds on her hands, and she had died of a stab wound to the
chest. On appeal, we held that the trial court did not abuse its discretion by
admitting this evidence because it was relevant and not unduly prejudicial.
Pandeli IV, 215 Ariz. at 528–29 ¶¶ 52–53, 161 Ariz. at 571–72.
¶41 At the PCR hearing, Shriver testified that he believed, under
the existing case law, that the facts and evidence of Humphreys’ murder
would be admitted as relevant to leniency and his experts would be
questioned about it. He also testified he believed that the Humphreys
murder was “an integral part of [Pandeli’s] troubled life” and it was “part
and parcel of his mitigation” to show that it was no surprise that he killed
another woman but should nonetheless be shown leniency.
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STATE v. PANDELI
Opinion of the Court
¶42 On this record, Pandeli has failed to meet his burden of proof
that counsel’s performance was deficient. Counsel’s testimony at the PCR
hearing established that counsel attempted to preclude the evidence, and
when that failed, prepared their witnesses to be cross-examined on the facts
and attempted to fit the evidence into the overall mitigation presentation.
Counsel’s actions were the product of strategic decisions given the trial
court’s ruling and did not constitute IAC. The PCR court abused its
discretion in granting relief on this claim.
7. Failure to object to references to serial killers
¶43 The PCR court found that defense counsel’s “failure to object
to reference of serial killers” constituted IAC. However, the PCR court
made no specific findings on this claim in its final ruling, in violation of
Rule 32.8(d). The record demonstrates that Pandeli did not meet his burden
of proving IAC.
¶44 Pandeli argued in his PCR petition that the State “repeatedly
asked questions about serial killers from material relied upon by Dr.
Cunningham” and that “[m]ost of those questions had no bearing on this
case.” Pandeli claims that counsel were ineffective because they “did not
object to the questions until well after [the State] had already asked those
questions and placed in the jurors[’] mind that [Pandeli] was a serial killer.”
¶45 At the penalty phase retrial, the subject of serial killers was
mentioned in a publication that Dr. Cunningham relied on. As Pandeli
acknowledges, defense counsel raised multiple objections to the
prosecutor’s general line of questioning that referenced the publication and
unsuccessfully requested a mistrial on that basis. The record thus
demonstrates that counsel vigorously contested the evidence.
8. Failure to object to Dr. Keen’s testimony
¶46 Dr. Buldoc performed the autopsy on Iler in 1993. During the
aggravation phase of the resentencing trial, Dr. Keen testified that he had
formed his own opinions about Iler’s cause of death based on the autopsy
report and photograph exhibits displayed at trial. Dr. Buldoc’s autopsy
report was not admitted. The PCR court found that counsel committed IAC
by failing to object to permitting Dr. Keen to “stand[] in for someone
16
STATE v. PANDELI
Opinion of the Court
absent” and “provid[e] conclusions and opinions in regard to aggravators
which were not his own.” We reject this conclusion. Dr. Keen neither
testified to any of Dr. Buldoc’s conclusions, nor was he a mere “conduit”
for Dr. Buldoc. See State v. Lundstrom, 161 Ariz. 141, 148, 776 P.2d 1067, 1074
(1989) (“if the testifying expert merely acts as a conduit for another non-
testifying expert’s opinion, the ‘expert opinion’ is hearsay and is
inadmissible”). Rather, he properly testified to his own conclusions and
was subjected to cross-examination.
¶47 In Crawford v. Washington, 541 U.S. 36, 59 (2004), the United
States Supreme Court held that out-of-court testimonial statements by
witnesses are barred under the Confrontation Clause, unless the witnesses
are unavailable and defendants had a prior opportunity to cross-examine
those witnesses. Apparently relying on Crawford and its progeny, the PCR
court determined that defense counsel should have objected to Dr. Keen’s
testimony because he did not perform the autopsy himself. Although the
United States Supreme Court has declined to create a “forensic evidence”
exception to Crawford, see Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329
(2009); Bullcoming v. New Mexico, 564 U.S. 647, 662 (2011), the autopsy report
on which Dr. Keen relied was nontestimonial and therefore not subject to
the strictures of the Confrontation Clause. See State v. Medina, 232 Ariz. 391,
406 ¶¶ 61–62, 306 P.3d 48, 63 (2013) (autopsy report created to determine
manner and cause of death is nontestimonial). Thus, objecting to his
testimony would not have resulted in its preclusion.
¶48 In Davis v. Washington, 547 U.S. 813, 822 (2006), the United
States Supreme Court held statements are testimonial when their primary
purpose is to “establish or prove past events potentially relevant to later
criminal prosecution.” The subsequent plurality opinion in Williams v.
Illinois reinforced this notion, holding that testimonial statements subject to
the Confrontation Clause are “out-of-court statements having the primary
purpose of accusing a targeted individual of engaging in criminal conduct.”
132 S. Ct. 2221, 2242 (2012) (emphasis added). In his concurring opinion,
Justice Thomas concluded the Confrontation Clause only extends to
“formalized testimonial materials such as depositions, affidavits, and prior
testimony, or statements resulting from formalized dialogues, such as
custodial interrogation.” Williams, 132 S. Ct. at 2260 (quoting Michigan v.
Bryant, 562 U.S. 344, 379 (2011)) (internal quotation marks omitted). The
17
STATE v. PANDELI
Opinion of the Court
report here is nontestimonial under either the “primary purpose” test
espoused by the Williams plurality or the “solemnity” test of Justice
Thomas.
¶49 Informed by Williams, this Court has held that an autopsy
report is nontestimonial when created to determine the manner and cause
of death to aid in apprehending a suspect at large, rather than gathering
evidence for prosecution of a known suspect. Medina, 232 Ariz. at 406 ¶ 62,
306 P.3d at 63. Because the autopsy report here was created for the very
purpose espoused in Medina, we conclude it is nontestimonial and thus Dr.
Keen’s testimony did not violate the Confrontation Clause.
¶50 In addition to Medina’s holding regarding nontestimonial
reports, this Court has held that a testifying medical examiner may offer an
opinion based on the autopsy performed by a non-testifying expert without
violating the Confrontation Clause so long as the examiner testifies as to his
or her own conclusions, is subject to cross-examination, and the report is
not admitted into evidence. State v. Joseph, 230 Ariz. 296, 298 ¶¶ 8–9, 283
P.3d 27, 29 (2012); see also State v. Smith, 215 Ariz. 221, 228 ¶ 23, 159 P.3d 531,
538 (2007) (“Expert testimony that discusses reports and opinions of
another is admissible . . . if the expert reasonably relied on these matters in
reaching his own conclusion.”); State v. Snelling, 225 Ariz. 182, 187 ¶¶ 19–
21, 236 P.3d 409, 414 (2010) (holding no Confrontation Clause violation
occurred because the medical examiner testified that she formed her own
opinions after reading the autopsy report, was confronted and cross-
examined about her opinions, and the autopsy report was not admitted into
evidence).
¶51 Because the autopsy report was nontestimonial and Dr.
Keen’s testimony complied with our case law, counsel had no reason to
object. Thus, we need not address whether refraining from objecting to the
testimony prejudiced Pandeli.
9. Allowing testimony of Humphreys’ sister
¶52 The PCR court found that “allow[ing] family of prior victim
to testify” constituted a colorable claim of IAC, but made no specific
findings on this point. The only member of Humphreys’ family who
testified was her sister. Defense counsel objected to this testimony by
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STATE v. PANDELI
Opinion of the Court
unsuccessfully moving to preclude it. Therefore, defense counsel was not
deficient on this point.
10. Failure to effectively cross-examine Chris Pandeli
¶53 During the penalty phase, Pandeli’s half-brother, Chris,
described Pandeli’s behavior and alcohol consumption at a bar the night of
Iler’s murder and the night after. He also testified that Pandeli claimed to
have once stabbed a black female hitchhiker and that Pandeli called Chris
after his arrest and admitted to killing Iler and a black woman. Although
defense counsel briefly cross-examined Chris, she did not ask whether
Chris had any bias or motive for testifying against Pandeli. The PCR court
found that defense counsel’s failure to bring out Chris’s “extremely
prejudicial” biases on cross-examination constituted IAC.
¶54 At the PCR hearing, Shriver testified that he and Sinclair
interviewed Chris before trial and were aware that he hated Pandeli and
had no problems with a death sentence. Shriver testified that he and
Sinclair specifically discussed and determined that a lengthy cross-
examination of Chris would not be beneficial, but also that doing so would
open the door to him letting the jury see his real feelings about Pandeli.
Shriver also stated that he did not want to give Chris the opportunity to
“vent,” because he believed that Chris’ testimony would not be “important
to the jury based on what they’d already heard,” and did not want to allow
“another opportunity for somebody to get up and say bad stuff about
[Pandeli].” Sinclair also recalled being aware that Chris blamed Pandeli for
their father’s health and financial problems and remembered that he
possessed some sort of damaging information. Therefore, because Chris
was not seen as a “key witness” and had information “that was more
damaging than any cross could fix,” defense counsel decided not to subject
him to a lengthy cross-examination.
¶55 Defense counsel’s decision not to extensively cross-examine
Chris Pandeli was strategic and “reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. The PCR court erred by granting
relief on this issue.
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Opinion of the Court
11. Failure to request instruction on all mitigating factors
¶56 Defense counsel presented twelve categories of non-statutory
mitigating circumstances to the jury encompassing at least eighty-three
individual factors. Michael Reeves, Pandelli’s “Strickland expert,” testified
that defense counsel should have asked for instructions on each of the
individual mitigators rather than grouping them into twelve categories.
The PCR court agreed, finding that defense counsel was ineffective by
failing “to present individual mitigating factors for Mr. Pandeli” and
“[i]nstead . . . submitt[ing] general categories of mitigators to the jury.”
¶57 Counsel testified that he intended to present mitigating
evidence as a general outline rather than as an exhaustive list of individual
mitigators. Additionally, the jury was instructed that it could consider any
factor as mitigation. The decision to organize mitigating evidence in this
fashion was a strategic decision that is well within the boundaries of
reasonable representation required by Strickland.
¶58 To the extent the PCR court suggested that counsel’s decision
violated Pandeli’s Eighth Amendment rights, we disagree. The Eighth
Amendment does not require a capital jury to be instructed on specific
mitigating factors. State v. Johnson, 212 Ariz. 425, 437–38 ¶¶ 44–47, 133 P.3d
735, 747–48 (2006) (citing Buchanan v. Angelone, 522 U.S. 269, 270 (1998)).
The jury was instructed that it “must consider and give effect to all
mitigating circumstances that have been raised by any aspect of the
evidence.” We presume that jurors follow the court’s instructions. Newell,
212 Ariz. at 403 ¶ 68, 132 P.3d at 847 (2006). The instruction satisfies
Buchanan and counsel’s presentation neither violated Pandeli’s Eighth
Amendment rights nor constitutes IAC.
12. Ineffective mitigation presentation
¶59 An issue that was not raised in the PCR petition, yet was
determined by the PCR court to constitute IAC, was that the mitigation
presentation was deficient. The PCR court did not make any findings or
conclusions directly on this point. However, the court did find that the
mitigation specialist, Barb Bumpus, had never worked on a capital case and
20
STATE v. PANDELI
Opinion of the Court
was not qualified to do so; the Legal Defender’s Office restricted counsel’s
ability to perform mitigation; and counsel had no supervisory authority
over mitigation personnel.
¶60 Although both Shriver and Sinclair testified that the
mitigation specialist was unqualified, defendants do not have a stand-alone
right to a mitigation specialist. See Phillips v. Bradshaw, 607 F.3d 199, 207–08
(6th Cir. 2010) (“[H]iring a mitigation specialist in a capital case is not a
requirement of effective assistance of counsel.”); State v. Herring, 28 N.E.3d
1217, 1239 ¶ 113 (Ohio 2014) (holding defendant had no “constitutional
right to a mitigation specialist or a right to an effective one”). To determine
whether counsel provided ineffective assistance in this regard, the question
is not whether the mitigation specialist was unqualified, but rather whether
counsel fully investigated the defendant’s background. See Wiggins v.
Smith, 539 U.S. 510, 524–25 (2003).
¶61 Indeed, Shriver testified that he was aware of Wiggins and
that he conducted a full investigation of Pandeli’s mitigation. Pandeli has
not established that defense counsel failed to meet their obligation to fully
investigate his background, nor does he establish that defense counsel
failed to adequately present mitigation to the jury. The PCR court erred by
granting relief on this ground.
13. Inexperience of co-counsel Sinclair
¶62 Although not raised in the PCR petition, the PCR court found
that Sinclair’s “inexperience . . . w[as] proven by a preponderance of the
evidence.” That determination was based on Sinclair’s testimony that she
“had never done a trial, not even a misdemeanor.” Therefore, the court
found that “deficits in the Petitioner’s defense . . . were the result of
inexperienced counsel and unprofessional judgment,” which was caused
because “counsel lacked the fundamental requisite understanding of the
requirements for conducting a capital defense.”
¶63 At the time of trial, Shriver was an experienced criminal
defense attorney who had been involved in capital cases. Shriver was
aware of Sinclair’s relative inexperience, but obtained this Court’s consent
to appoint Sinclair. See Ariz. R. Crim. P. 6.8(d) (Supreme Court may consent
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STATE v. PANDELI
Opinion of the Court
to appointment if “attorney’s experience, stature and record enable the
Court to conclude that the attorney’s ability significantly exceeds the
standards set forth in [Arizona Rule of Criminal Procedure 6.8]” and
“attorney associates with himself or herself a lawyer who does meet the
standards set forth in [Rule 6.8]”). He stated that Sinclair was not a
“newbie, as far as [her] experience in relation to capital stuff” because she
had previously “worked . . . on a capital case PCR at length.” Shriver
believed that Sinclair’s prior experience, “intellect, [and] her desire”
qualified her to be a part of the defense team under the guideline standards
at the time. At the PCR hearing, Shriver testified that even today he “would
not try to get Ms. Sinclair taken off a case,” and that “[s]he’s wonderful. She
might demean[] her abilities, but she’s a darn good attorney.”
¶64 The relative inexperience of a second-chair defense attorney
in capital trials does not in itself constitute IAC, especially when the first-
chair attorney, like Sinclair, was experienced. Indeed, “[d]efendants facing
the death penalty do not have a per se constitutional right to the assistance
of two attorneys.” State v. Hester, 324 S.W.3d 1, 35 (Tenn. 2010); see also Bell
v. Watkins, 692 F.2d 999, 1009 (5th Cir. 1982) (“Although Mississippi courts
may customarily appoint two lawyers in a capital case, the Constitution
dictates no such requirement.”); Smith v. State, 445 So. 2d 227, 230 (Miss.
1984) (holding that the constitution does not require the appointment of
two attorneys for indigent capital defendants). This is reiterated in
Committee Comment to Rule 6.8, which only recommends co-counsel in
capital cases, but does not require multiple attorneys. Ariz. R. Crim. P. 6.8
cmt. (“The committee recommends that co-counsel be appointed at all
stages of capital litigation.”). Here, having a second lawyer with criminal
defense and some capital case experience was of benefit to Pandeli, and the
court did not tie her relative inexperience to tangible adverse consequences.
The court erred by granting relief on this ground.
14. Failure to adequately conduct voir dire
¶65 The PCR court found defense counsel deficient for “fail[ing]
to conduct voir dire of the jury.” Specifically, the court found that counsel
did not “ask about the prejudices and to ask specific questions, such as
would you automatically give the death penalty to somebody, who has
been convicted of a murder, such as in this case of a sexually charged
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Opinion of the Court
murder?” The record does not support the court’s conclusion.
¶66 Although Sinclair had no experience selecting juries, lead
counsel Shriver had experience selecting juries in non-capital cases. Shortly
after Ring v. Arizona, 536 U.S. 584 (2002), Shriver attended a one-day
seminar on jury selection for capital cases. Shriver also testified that he
positioned staff throughout the courtroom to listen to the questions
presented at voir dire, write down the jury panels’ responses, and attempt
to rate prospective jurors.
¶67 Counsel also filed motions to “life qualify” the jury and
establish the scope of voir dire, and submitted a proposed questionnaire.
In fact, the State objected to two questions counsel proposed—whether the
listed types of murder (including “serial murders”) are appropriate for the
death penalty and one that had the proposed jurors indicate from a list of
circumstances which they could consider as a basis for imposing a life
sentence instead of a death sentence. Prospective jurors were also told that
Pandeli had committed a prior second-degree murder before he murdered
Iler and were asked whether they were “going to have problems getting
past the fact that this is a second murder.” They were also asked whether
they would consider various categories of mitigation relevant to Pandeli.
¶68 Pandeli did not carry his burden of proving that counsel’s
voir dire was deficient under the Strickland standard. Counsel performed
competent voir dire in support of their strategy, explained by Shriver at the
PCR hearing. Counsel employed a multifaceted voir dire strategy that was
not demonstrably incompetent. See Hovey v. Ayers, 458 F.3d 892, 910 (9th
Cir. 2006) (“Although counsel’s decision not to question prospective jurors
more extensively may seem a questionable decision in hindsight, it was
guided by a reasonable strategy and was not deficient performance.”). We
focus not on relative experience in this regard, but rather actual
performance, which Pandeli has not demonstrated was ineffective. See, e.g.,
LaGrand v. Stewart, 133 F.3d 1253, 1275 (9th Cir. 1998) (“[I]t is not the
experience of the attorney that is evaluated, but rather, his performance.”);
State v. Chapman, 816 P.2d 1023, 1026 (Idaho Ct. App. 1991) (“Mere
inexperience of counsel is not a sufficient basis for a claim of ineffective
assistance, such claim must succeed or fail on counsel’s performance, not
his level of experience.”).
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Opinion of the Court
15. Cumulative effect of IAC
¶69 This Court has not recognized the cumulative error doctrine
for IAC claims as it has for prosecutorial misconduct claims. In State v.
Hughes, this Court stated:
At the outset, we need to clarify Arizona’s
position regarding the cumulative error
doctrine in criminal cases. Our general rule has
been stated several times over the years, and
was recently stated in State v. Dickens, 187 Ariz.
1, 21, 926 P.2d 468, 488 (1996), as follows: “[T]his
court does not recognize the so-called
cumulative error doctrine.” See also State v.
Roscoe, 184 Ariz. 484, 497, 910 P.2d 635, 648
(1996); State v. White, 168 Ariz. 500, 508, 815 P.2d
869, 877 (1991). This lack of recognition is based
on the theory that “something that is not
prejudicial error in and of itself does not become
such error when coupled with something else
that is not prejudicial error.” Roscoe, 184 Ariz. at
497, 910 P.2d at 648. . . .
We reiterate the general rule that several non-
errors and harmless errors cannot add up to one
reversible error. We also clarify the fact that this
general rule does not apply when the court is
evaluating a claim that prosecutorial
misconduct deprived defendant of a fair trial.
193 Ariz. 72, 78–79 ¶ 25, 969 P.2d 1184, 1190–91 (1998).
¶70 Ninth Circuit decisions establish that the cumulative effect of
deficiencies may support a finding of prejudice, even when no single
instance of IAC meets the prejudice standard. See Boyde v. Brown, 404 F.3d
1159, 1176 (9th Cir. 2005) (“We must analyze each of his claims separately
to determine whether his counsel was deficient, but prejudice may result
from the cumulative impact of multiple deficiencies.”); Mak v. Blodgett, 970
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STATE v. PANDELI
Opinion of the Court
F.2d 614, 622 (9th Cir. 1992) (“We do not need to decide whether these
deficiencies alone meet the prejudice standard because other significant
errors occurred that, considered cumulatively, compel [a granting of
relief].”). But see Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998)
(“Having just determined that none of counsel’s actions could be
considered constitutional error . . . it would be odd . . . to conclude that
those same actions, when considered collectively, deprived [defendant] of
a fair trial.”) Citing the Ninth Circuit cases, Pandeli argues that, even if this
Court does not find deficient performance on any one individual issue, the
multiple instances of IAC have cumulatively prejudiced him under
Strickland.
¶71 Regardless of whether the cumulative error doctrine should
be recognized in this context, the record shows no aggregate IAC occurred
here. It may be that multiple instances of non-prejudicial actions deemed
inadequate by the defendant, viewed collectively, amount to IAC. Here,
however, all of the conduct at issue was within the requisite bounds of
competence. Although in hindsight counsel may have done certain things
differently, their decisions all were grounded in reason or strategy and were
not shown to be the product of ineptitude, inexperience, or lack of
preparation. As a result, there is no cumulative error.
¶72 Because the actions and decisions complained of are within
the bounds of professional competence, we do not need to determine
whether they prejudiced Pandeli. State v. Salazar, 146 Ariz. 540, 541, 707
P.2d 944, 945 (1985). We reverse the PCR court’s conclusion that Pandeli
received inadequate representation. The cumulative decisions about which
Pandeli complains do not amount to IAC.
B. Due Process Issue
¶73 The PCR court likewise erred in finding a due process
violation based on testimony by the State’s medical expert, Dr. Bayless, that
Pandeli malingered during his cognitive tests and suffered only from an
antisocial disorder rather than serious mental illness. Specifically, the PCR
court found:
Defendant’s [sic] have a right to a fair
25
STATE v. PANDELI
Opinion of the Court
sentencing procedure which includes the right
to be sentenced on the basis of accurate
information, which basic tenet was violated at
this resentencing.
Defendant, it is clear, suffers from a serious
mental illness (cerebral dysfunction and
impaired frontal lobes) but the jury was told he
had an anti-social personality disorder and was
a malingerer.
¶74 The PCR court implied that the jury must be given only
objectively accurate expert testimony and that the court is the arbiter of that
accuracy. It is a tall order to establish that expert opinions are objectively
“inaccurate” and even taller to establish they are so wrong that merely
asserting them makes a sentencing procedure so unfair as to violate due
process. See State v. Goudeau, 239 Ariz. 421, 443 ¶ 50, 372 P.3d 945, 967 (2016)
(“Generally a defendant’s due process rights are sufficiently protected by
the opportunity to cross-examine the state’s expert regarding the validity
of the testing procedures.”). We note that opinion testimony often includes
subjective components, and good faith disagreements among credible
experts are not unusual and do not necessarily amount to a due process
violation. See In re Richards, 289 P.3d 860, 872 (Cal. 2012). To the contrary,
they are the core of our adversarial process.
¶75 The PCR court relied on United States v. Tucker, 404 U.S. 443,
446–47 (1972), and State v. Grier, 146 Ariz. 511, 516, 707 P.2d 309, 314 (1985)
for support that Pandeli’s due process rights were violated by Dr. Bayless’s
testimony. But Tucker and Grier dealt with objectively erroneous facts
rather than subjective opinions given by an expert, and are not applicable.
See Tucker, 404 U.S. at 447 (trial court relied on three prior convictions in
imposing sentence but two convictions were invalid); Grier, 146 Ariz. at
515–17, 707 P.2d at 313–15 (sentencing court and examining doctors relied
on a presentence report that included an erroneous rap sheet).
¶76 The circumstances here are distinguishable from Tucker and
Grier. The PCR court did not find that Dr. Bayless relied on any inaccurate
facts to arrive at his opinions; the court simply disagreed with those
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STATE v. PANDELI
Opinion of the Court
opinions. However, a defendant’s due process rights are not violated by a
good-faith “battle of the experts.” That Pandeli’s experts disagreed with
Dr. Bayless’s diagnosis merely goes to the weight and credibility of Dr.
Bayless’s opinion, matters reserved for the fact-finder’s consideration and
determination. See State v. Romero, 239 Ariz. 6, 12 ¶ 27, 365 P.3d 358, 364
(2016) (“[W]e have recognized that a trial court’s admission of disputed
expert testimony leaves to the fact-finder the role of assessing its weight
and credibility.”); see also State v. Lajeunesse, 27 Ariz. App. 363, 368, 555 P.2d
120, 125 (1976) (finding that disputed facts in the case “were either not
relied upon by [the expert] in reaching his opinion, or were immaterial to
his opinion, or were legitimately contested facts and evidence . . . that
supported [the expert’s] version,” and that the trial court properly left it to
the jury to assign weight to that testimony). An expert’s opinion is not
“false” merely because another expert—or the court—disagrees with it. To
hold otherwise would destroy any trial process involving conflicting expert
opinions and improperly substitute judge for jury.
¶77 Pandeli argues his due process rights were violated not
because there was a disagreement between each party’s experts but because
the other experts “demonstrated that crucial portions of Bayless’s testimony
were either significantly misleading to the jury, based on incorrect
application or interpretation of established psychological principles, or
were outright false.” Pandeli claims Dr. Bayless misled the jury by
testifying that Pandeli was malingering and that Zoloft and Prozac have no
application in the treatment of Attention Deficit Hyperactivity Disorder
(“ADHD”), and by conflating Antisocial Personality Disorder with
psychopathy. This argument fails because Pandeli has provided no
objective evidence that Dr. Bayless’s testimony was false or misleading.
¶78 Dr. Bayless did not present objectively false or misleading
testimony that he believed Pandeli was malingering during his evaluation.
Pandeli cites Dr. Weinstein’s testimony at the PCR hearing for support that
Dr. Bayless’s testimony was “unmoored from any factual, scientific basis,”
and “[s]uch uncorrected, unscientific testimony from an expert witness
created at a minimum a grave risk that the sentencing jury was misled.”
However, Dr. Weinstein testified that Dr. Bayless did not use any tests that
directly measured effort, which brought him to the conclusion that “if you
don’t have any objective way of finding out whether they are or [are] not
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STATE v. PANDELI
Opinion of the Court
making any good effort, then it is very difficult to say based on X. Y. Z., I
think he is or he is not malingering.” Dr. Weinstein did not state that Dr.
Bayless was objectively wrong, but rather that it would be difficult to
determine whether Pandeli was malingering without specific tests
designed to determine effort. This is a difference of opinion between two
experts and does not violate Pandeli’s due process rights.
¶79 Nor did Dr. Bayless present objectively false or misleading
testimony when he stated that Zoloft and Prozac have no application for
treatment of ADHD. Pandeli cites Dr. Jones’s testimony at the PCR hearing
for support that Dr. Bayless’s conclusion that Zoloft and Prozac have no
application for treatment of ADHD was false. However, Dr. Jones’s only
analysis on the subject was the general conclusion “[t]hat [it] is not true”
that the medications did not have any application for treatment for ADHD.
No other evidence was presented on this subject. In short, one expert stated
the medications had no application for the treatment of ADHD and another
said they do. It was up to the jurors to determine which expert’s testimony
they believed and chose to accept. See Lajeunesse, 27 Ariz. App. at 368, 555
P.2d at 125. This too was merely a difference of opinion between two
experts and does not constitute a violation of Pandeli’s due process rights.
¶80 Finally, Dr. Bayless did not present objectively false or
misleading testimony when he discussed Antisocial Personality Disorder
and psychopathy. Pandeli relies on Dr. Jones’s testimony at the PCR
hearing that Dr. Bayless incorrectly conflated the two disorders at trial, and
thus presented false and misleading testimony to the jury. However, this
is not supported by the record. When Pandeli’s PCR counsel asked Dr.
Jones, “So it sounds like you are saying [Dr. Bayless’s] diagnosis of Mr.
Pandeli with antisocial personality disorder was incorrect, based on what
he did?” Dr. Jones only replied, “Well, there’s an inconsistency in the
testimony and with the statement that Dr. Bayless presented and the
diagnosis that he presented.” This again reflects a difference of opinion
between two experts and does not constitute a violation of Pandeli’s due
process rights.
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Opinion of the Court
CONCLUSION
¶81 For the foregoing reasons, we reverse the ruling of the PCR
court and reinstate Pandeli’s death sentence.
29