State v. Harmon, 1 CA-CR 15-0248-PRPC

Background

David Thomas Harmon was convicted by a jury of kidnapping, second-degree burglary, attempted kidnapping, and attempted second-degree burglary for separate incidents in Nov. 2009 (Victim 1) and Jan. 2010 (Victim 2); aggregate sentence 60 years. Appellate court previously affirmed convictions.
Harmon filed a first petition for post-conviction relief raising newly discovered evidence, Brady nondisclosure, and multiple ineffective-assistance-of-counsel (IAC) claims. The superior court summarily dismissed and Harmon sought review.
Newly discovered-evidence claims: Harmon asserted (1) alibi witnesses placing him in Mexico during Victim 1’s offense and (2) later medical opinions from treating physicians showing he lacked physical capacity to commit the acts.
Brady claims: Harmon alleged the State failed to disclose certain police reports, a Victim 2 statement, and alternate/unaltered photographic lineup materials that he contends were exculpatory.
IAC claims: Harmon alleged counsel failed to (a) present alibi witnesses, (b) retain orthopedic/identification experts, (c) obtain ‘‘original’’ lineup materials, (d) impeach or cross-examine effectively, and (e) challenge identification procedures.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Newly discovered alibi witnesses	Harmon: new witnesses place him in Mexico at time of Victim 1 offense	State: witnesses known before trial; no sworn affidavits provided	Denied — Harmon produced only unsworn statements and admitted identities were known pretrial; not newly discovered
Newly discovered medical evidence	Harmon: post-event physician reports show knee injury made offenses physically impossible	State: Harmon knew of prior injury and treatments; reports are years after offenses	Denied — not newly discovered; records postdate incidents and reflect ongoing condition rather than contemporaneous exculpatory evidence
Brady nondisclosure (police reports, victim statement, lineup copies)	Harmon: State suppressed exculpatory reports and alternate lineup versions	State: disclosed materials to prior counsel; Harmon obtained reports from former counsel; no proof other versions exist	Denied — disclosure to at least some counsel occurred; Harmon’s failure to find docs in one counsel’s file not Brady; speculations about other lineup versions insufficient
Ineffective assistance of counsel (multiple failures)	Harmon: counsel failed to investigate/call witnesses, obtain experts, secure originals, and adequately impeach/cross-examine	State: trial strategy choices, lack of affidavits from proposed witnesses/experts, and speculative claims fail to show deficient performance or prejudice	Denied — most complaints reflect strategic choices or speculative assertions; absent affidavits from witnesses/experts, claims not colorable under Strickland/Borbon

Key Cases Cited

State v. Borbon, 146 Ariz. 392 (1985) (sworn affidavits required to show what a newly discovered witness would testify)
State v. Dogan, 150 Ariz. 595 (App. 1986) (newly discovered facts must not have been discoverable at trial with reasonable diligence)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose evidence favorable to defendant)
Strickler v. Greene, 527 U.S. 263 (1999) (undisclosed evidence is material only if it creates a reasonable probability of a different result)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
State v. Montaño, 204 Ariz. 413 (2003) (Brady applies only to evidence favorable to defendant)
State v. Nash, 143 Ariz. 392 (1985) (Arizona adoption of Strickland)
State v. Stone, 151 Ariz. 455 (App. 1986) (cross-examination and tactical choices are trial strategy)
State v. Valdez, 160 Ariz. 9 (1989) (trial strategy decisions do not establish ineffective assistance)
State v. Dessureault, 104 Ariz. 380 (1969) (procedures for challenging identification reliability)
State v. Whipple, 177 Ariz. 272 (App. 1993) (appellate courts may adopt trial court’s thorough reasons when dismissing petitions)