State v. Smith
State v. Smith
Opinion of the Court
¶ 1 Randall Smith seeks review of the trial court's order denying, after an evidentiary hearing, his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. We grant review and, for the following reasons, grant relief.
¶ 2 After a jury trial, Smith was convicted of attempted production of marijuana of an amount less than two pounds. The trial court suspended the imposition of sentence and placed Smith on an eighteen-month term of probation. His conviction stemmed from the discovery, pursuant to a search warrant, of approximately 130 marijuana plants in his house.
¶ 3 Investigating detectives' initial application for a search warrant was rejected. That affidavit had alleged as a basis for probable cause that Smith's son had told detectives Smith was growing marijuana at the residence, detectives who had knocked at the front door smelled fresh marijuana, a drug-detection dog had alerted while outside the residence, detectives had seen three marijuana plants growing in the backyard, and Smith (who had stated he had a medical-marijuana card) then admitted both growing marijuana at the house and having "something" inside it that was "none of [the detectives'] business." A different judge granted a second warrant application, which included additional information that Smith's water usage was unusually high and that several windows of the house were covered in foam and plastic-like the residence of Smith's son, which also contained marijuana plants.
¶ 4 Smith filed a motion to suppress below, arguing the search warrant affidavit contained false statements concerning his water usage. The trial court denied the motion, finding the remaining information in the warrant affidavit was sufficient to support a finding of probable cause.
¶ 5 On appeal, Smith argued the trial court had erred by denying his suppression motion. In addition to repeating his argument concerning allegations of water usage, he further asserted, for the first time, that the use of the drug-detection dog and the detectives'
*588entry into the curtilage of his home violated his Fourth Amendment rights. We rejected the argument regarding water usage, but we concluded the use of the drug-detection dog was improper under Florida v. Jardines ,
¶ 6 Smith sought post-conviction relief, arguing his trial counsel had been ineffective in failing to argue in the motion to suppress that detectives had violated the Fourth Amendment by entering the curtilage. The trial court held an evidentiary hearing at which Smith's trial counsel testified that he had considered, but declined to raise, an argument based on the detectives' entry into the curtilage. As we understand his testimony, he stated he believed any information in support of probable cause obtained during that entry had been "rejected" by the denial of the first warrant application and the later issuance of a warrant only after detectives had provided additional information. Thus, counsel concluded that information was immaterial to the probable-cause finding and his strongest argument was, therefore, that the warrant affidavit contained false statements about Smith's water usage. Counsel further testified that he usually focused on the stronger available arguments, rather than "diluting" his case with what he perceived were weaker issues.
¶ 7 The trial court denied relief, concluding counsel had made a reasoned, tactical decision to raise what he believed to be the stronger argument in the motion to dismiss that the statements concerning his water usage were false. The court also observed that Smith had "provided no other evidence, such as an expert opinion to the trial court, that demonstrates [trial counsel's] decision ... fell below prevailing professional norms." Because the court determined Smith had not shown counsel's conduct was deficient, it did not address whether Smith had demonstrated prejudice. This petition for review followed.
¶ 8 On review, Smith argues the trial court erred by concluding counsel's conduct did not fall below prevailing professional standards. Smith contends that counsel's testimony demonstrates that he incorrectly believed the curtilage issue had already been decided and that he did not investigate that issue. To prevail, Smith "was required to demonstrate that counsel's conduct fell below prevailing professional norms and that he was prejudiced thereby." State v. Denz ,
¶ 9 There is "[a] strong presumption" that counsel "provided effective assistance," State v. Febles ,
*589Denz ,
¶ 10 As we noted above, counsel testified that he believed the issuing judge found probable cause based solely on the water usage and presence of window coverings. He further testified that this belief drove his decision to raise only the water-usage claim in the motion to suppress. But counsel's assessment is unsupported by the record, including counsel's own motion to suppress. Counsel stated in that motion that the probable-cause finding was based on all the information provided to the issuing judge. And nothing in the transcript of the warrant application suggests the issuing judge had restricted the basis of her probable-cause finding to the water usage and window coverings. Thus, we disagree with our dissenting colleague that our determination of counsel's ineffectiveness is based on hindsight. The record here demonstrates that counsel did not base his decision on a reasoned evaluation of the strength of the curtilage claim but, instead, on an unreasonable misunderstanding of the probable-cause evaluations. In these circumstances, we cannot agree counsel made a reasoned, tactical decision to forgo raising the curtilage issue.
¶ 11 As the trial court correctly noted, even if counsel's conduct fell below prevailing professional standards, Smith is not entitled to relief unless he shows a reasonable probability that a motion to suppress claiming detectives improperly entered his curtilage would have been granted. See Denz ,
¶ 12 We grant review and relief, and we remand the case to the trial court to determine whether Smith has demonstrated resulting prejudice.
We do not suggest that counsel falls below prevailing professional standards by deciding to forgo weaker but arguably tenable claims in favor of stronger claims. Clearly, the decision to focus the trial court on what counsel believes are the strongest arguments can be a reasoned, tactical decision that cannot form the basis of a claim of ineffective assistance. Cf. Febles ,
Dissenting Opinion
¶ 13 As my colleagues acknowledge, there is a "strong presumption" that trial counsel was effective. Febles ,
¶ 14 While the majority correctly notes that ineffective assistance of counsel is a mixed question of fact and law and that we "defer to the trial court's factual findings," Denz ,
*590¶ 15 Trial counsel's testimony at the Rule 32 hearing was not the pinnacle of clarity and, as highlighted by my colleagues, reflected some contradictions and apparent confusion at times. But counsel also testified to a defense strategy that made sense and shows that his representation was not necessarily subpar or unprofessional. In reaching a contrary conclusion, my colleagues focus on certain inaccurate responses by trial counsel at the hearing, held four years after counsel's representation of Smith, while neglecting other testimony and evidence presented to the trial court regarding what counsel actually did in defending his client.
¶ 16 Specifically, my colleagues note that trial counsel "testified that he believed the issuing judge found probable cause based solely on the water usage and presence of window coverings" and "this belief drove his decision to raise only the water usage claim in the motion to suppress." But although counsel appears to have at times during his testimony misstated the operative factors supporting the issuance of the warrant, he also repeatedly testified he was having difficulty recalling what had transpired because it was four years in the past. Additionally, it appears he was somewhat defensive and perhaps confused at times during the hearing. But portions of his testimony clearly show he had made a strategic decision to challenge the search warrant based on what appeared to be strong evidence that the police-affiant had made misrepresentations to the issuing judge that were key in the procurement of the warrant the second time around. Counsel also stated a clear and appropriate strategy in that he would "usually pick the strongest" argument rather than "diluting" it and though he had "thought about" the curtilage issue, he had concluded "the water supply was a much ... stronger argument," a position supported, if not borne out, by the testimony of some of the officers who executed the warrant, along with several exhibits introduced at the Rule 32 hearing.
¶ 17 The majority's conclusion that trial counsel mistakenly believed the search warrant had been issued based solely on the two additional reasons presented in the second warrant application is a reasonable interpretation of counsel's confusing testimony. But it is not the only feasible interpretation. Counsel also stated, "I raised in my motion [to suppress that] there were six criteria and four had been rejected." Indeed, my colleagues acknowledge that in that motion, filed by counsel at the time , he stated, "[T]he probable cause finding was based on all the information provided to the issuing judge." Thus, counsel's contradictory response four years after the fact did not reflect what he actually did and believed at the time he represented Smith. See Strickland,
¶ 18 The trial court heard all of the testimony and considered a number of exhibits introduced at the hearing, and expressly exercised its judgment in evaluating that evidence, particularly the ambiguous statements of counsel. As noted above, a trial court's findings regarding an ineffective assistance claim are entitled to deference and reviewed for abuse of discretion. See Denz ,
¶ 19 In sum, despite some perplexing statements by counsel at the Rule 32 hearing years after the operative events, there is clear evidence supporting the trial court's finding that counsel had made a reasonable decision to challenge the search warrant by focusing on the two grounds ultimately resulting in its issuance rather than pursuing an arguably weaker curtilage issue. And notably, no expert legal opinion was presented that counsel fell below prevailing professional norms. My colleagues discount those factors, while selectively pointing to after-the-fact misstatements by counsel to retroactively impute ineffectiveness. For all of these reasons, I cannot agree the trial court committed legal error, and I would affirm its appropriate exercise of discretion in denying Smith's Rule 32 petition.
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