361 P.3d 952
Ariz. Ct. App.2015Background
- Phillip Speers was convicted in 2003 of multiple counts of child molestation; convictions were reversed on appeal for excluding expert testimony about suggestive interview techniques and retried. After waiving counsel he was represented by advisory counsel Kristi Riggins for most of the second trial; jury convicted on two counts and sentenced to consecutive prison terms.
- During deliberations a juror (Juror 11) revealed extrinsic information from a relative who had been molested; the court excused Juror 11, recalled an alternate, and sent jurors back to deliberate. Another juror (Juror 2) allegedly stated she had similar personal experiences but was not fully questioned at the time.
- Speers’s trial counsel withdrew his proposed lesser-included instruction (contributing to the delinquency of a minor) before final jury instructions; counsel later defended the omission as legally required given the facts and an all-or-nothing defense.
- In his first Rule 32 petition Speers alleged ineffective assistance based on counsel’s abandonment of the lesser-included instruction, counsel’s failure to preserve/develop a record about Juror 2’s alleged misconduct (precluding appellate review), interference with his right of self-representation, and newly discovered evidence concerning Juror 13’s prior employment at the county detention center.
- The trial court summarily denied the petition as not colorable and precluded by failure to raise on direct appeal. The Court of Appeals granted review, vacated the denial in part, and remanded for an evidentiary hearing on two ineffective-assistance claims.
Issues
| Issue | Speers' Argument | State/Trial Court Argument | Held |
|---|---|---|---|
| 1) Counsel ineffective for abandoning lesser-included instruction (contributing to delinquency) | Riggins withdrew instruction based on mistaken legal conclusion; record contained evidence (admissions of ‘‘inappropriate’’ touching, lap-sitting, pocket-touching) that could support the lesser offense and a reasonable juror could convict only on the lesser offense | Riggins made a tactical decision after research; omission was reasonable and thus not deficient | Court: Colorable claim; counsel may have been unreasonably mistaken about the law — remand for evidentiary hearing on ineffective assistance for abandoning the instruction |
| 2) Counsel ineffective for failing to develop/preserve record of Juror 2’s alleged misconduct (preventing appellate review) | Juror 2 allegedly told the jury she had been molested and remembered details; counsel failed to obtain affidavits or other extrinsic evidence to preserve the issue for appeal | Trial court found assertion speculative and not shown in record; appellate courts can review for fundamental error | Court: Colorable claim; Higgins affidavit supports that counsel was deficient in failing to investigate/preserve juror misconduct — remand for hearing on this claim |
| 3) Counsel impaired Speers’s Faretta right by not informing him she would withdraw the instruction when appointed | Speers contends Riggins did not inform him of her intent to abandon the instruction before he agreed to representation, interfering with his self-representation waiver | Trial court warned Speers that once Riggins appointed he could not resume self-representation and found no evidence she contemplated abandoning instruction when appointed | Court: No abuse of discretion in summary denial; no basis to find counsel deprived Speers of his Faretta right |
| 4) Newly discovered evidence: Juror 13 failed to disclose detention-center employment during voir dire | Speers alleges Juror 13 knew him from prior incarceration and hid that fact; this would show juror nondisclosure/misrepresentation warranting new trial | Trial court found due diligence problems and the juror interview submitted did not show a material omission or misrepresentation about knowledge of Speers | Court: No colorable claim shown; summary denial of this claim affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes performance and prejudice standard for ineffective assistance of counsel)
- State v. Wall, 212 Ariz. 1 (clarifies when a lesser-included instruction is required even with an all-or-nothing defense)
- State v. Bennett, 213 Ariz. 562 (defines colorable Rule 32 claim standard and ineffective-assistance framework in Arizona)
- State v. Denz, 232 Ariz. 441 (addresses strategic decisions and ineffective-assistance analysis)
- State v. Lee, 142 Ariz. 210 (strategic choices not challenged if reasoned; mistaken legal beliefs are reviewable)
- State v. Jerousek, 121 Ariz. 420 (holds contributing to delinquency is a lesser-included offense of child molestation)
- State v. Sutton, 104 Ariz. 317 (earlier precedent recognizing contributing to delinquency as lesser-included)
- State v. Diaz, 223 Ariz. 358 (appellate review for fundamental error limited to what affirmatively appears in the record)