The STATE of Arizona, Respondent, v. Phillip Gregory SPEERS, Petitioner.
No. 2 CA-CR 2015-0315-PR.
Court of Appeals of Arizona, Division 2.
Nov. 2, 2015.
361 P.3d 952
Judge ESPINOSA
Jon R. Smith, Yuma County Attorney, Yuma, Counsel for Respondent.
Law Office of Harley Kurlander By Harley Kurlander, Tucson, Counsel for Petitioner.
OPINION
ESPINOSA, Judge:
¶ 1 Petitioner Phillip Gregory Speers seeks review of the trial court‘s order summarily denying his petition for post-conviction relief filed pursuant to
Relevant Procedural History
¶ 2 This post-conviction proceeding relates to Speers‘s second jury trial in this cause for charges brought against him in 2000. He was convicted in 2003 of four counts of child molestation and one count of sexual conduct with a minor involving four girls who had been students in his second-grade class. The trial court sentenced him to prison terms totaling seventy-one years. We reversed Speers‘s convictions on appeal, concluding the court had erred in “precluding expert testimony regarding suggestive interview techniques and its influence on children‘s memories” and that the error “[could not] be deemed harmless.” State v. Speers, 1 CA-CR 03-0812, ¶¶ 8-9, 34 (memorandum decision filed Feb. 24, 2005).
¶ 3 After the case was remanded in 2005, Speers waived his right to counsel and began representing himself, with the assistance of advisory counsel Kristi Riggins. On the seventh day of trial, the court granted Speers‘s request to appoint Riggins to represent him for the remainder of the proceedings.
¶ 4 The jury began deliberating on the fourteenth day of trial. During deliberations, the foreperson sent the trial court a note reporting that one of the jurors had asked an adult relative, who had been molested as a child, about the clarity of her
¶ 5 On the nineteenth day of trial, the jury found Speers guilty of molesting M.G. and M.A., as alleged in counts three and five of the indictment, and acquitted him of the other charges. Riggins filed a motion for new trial raising numerous issues, including a claim that juror misconduct had warranted a mistrial. The trial court denied the motion and sentenced Speers to two consecutive seventeen-year prison terms. Speers represented himself on appeal, and this court affirmed his convictions and sentences, rejecting, inter alia, his claim that he had been entitled to a mistrial based on juror eleven‘s misconduct. State v. Speers, 1 CA-CR 07-0796, 2010 WL 2176083 (memorandum decision filed June 1, 2010).
¶ 6 In his
¶ 7 Speers supported his petition with his own affidavits and the affidavits of others, including juror two and C.W., an apparent friend who averred she had voluntarily assisted Speers during his trials with such activities as “typing, phone calls, [and] finding case law.” He also submitted transcripts of recorded interviews with jurors eleven and thirteen, supported by an affidavit of current counsel regarding reasons affidavits from these jurors were unavailable. He additionally provided the affidavit of attorney Harold L. Higgins Jr., who averred he had forty years’ experience in criminal law and opined that Riggins‘s performance “fell below community standards and was ineffective under prevailing case law” with respect to the following two issues: (1) her failure to request a lesser-included offense instruction that “was appropriate both factually and legally” and relevant to “the counts on which guilty verdicts were returned” and (2) her failure to present the trial court with extrinsic evidence, “by affidavit or other verifying documentation,” of juror two‘s alleged jury misconduct, thereby “fail[ing] to preserve the issue for direct appellate review.”
¶ 8 The trial court summarily denied the petition, finding Speers failed to state a colorable claim for relief. In addition, the court found Speers‘s ineffective assistance claims precluded by his failure to raise them on direct appeal. This petition for review followed.
Discussion
¶ 9 A trial court must summarily dismiss a
¶ 10 We review a summary denial of post-conviction relief for an abuse of discretion, which may include an error of law. See State v. Petty, 225 Ariz. 369, ¶ 7, 238 P.3d 637, 639 (App.2010). Although a defendant‘s entitlement to an evidentiary hearing “is, to some extent, a discretionary decision for the trial court,” that court “must be mindful . . . that when doubt exists, ‘a hearing should be held to allow the defendant to raise the relevant issues, to resolve the matter, and to make a record for review.‘” State v. D‘Ambrosio, 156 Ariz. 71, 73, 750 P.2d 14, 16 (1988), quoting State v. Schrock, 149 Ariz. 433, 441, 719 P.2d 1049, 1057 (1986). We review de novo issues of law, such as whether a claim is precluded by waiver pursuant to
¶ 11 On review, Speers argues the trial court abused its discretion in concluding he failed to state colorable claims and in determining his ineffective assistance claims were precluded by his failure to raise them on appeal. As addressed below, we agree with Speers that his claims are not precluded. We also conclude he was entitled to a hearing on his claims that counsel was ineffective in abandoning a proposed jury instruction and in failing to develop a record of alleged misconduct by juror two. But we find no abuse of discretion in the court‘s summary denial of Speers‘s claims alleging counsel‘s impairment of his right of self-representation and newly discovered evidence of misrepresentations by juror thirteen.
Ineffective Assistance of Counsel
¶ 12 “To state a colorable claim of ineffective assistance of counsel, a defendant must show both that counsel‘s performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant.” Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on such a claim, a defendant must overcome the “strong presumption” that counsel performed “within the wide range of reasonable professional assistance” by demonstrating that counsel‘s conduct fell below “prevailing professional norms.” Strickland, 466 U.S. at 687-89; see also State v. Febles, 210 Ariz. 589, ¶ 20, 115 P.3d 629, 636 (App.2005); State v. Herrera, 183 Ariz. 642, 647, 905 P.2d 1377, 1382 (App.1995). Thus, he is “required to show counsel‘s decisions were not tactical in nature, but were instead the result of ‘ineptitude, inexperience or lack of preparation.‘” Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101, quoting State v. Goswick, 142 Ariz. 582, 586, 691 P.2d 673, 677 (1984).
¶ 13 A defendant establishes prejudice resulting from such deficient performance “if [ ]he can show 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.‘” Bennett, 213 Ariz. 562, ¶ 25, 146 P.3d at 69, quoting Strickland, 466 U.S. at 694; see also Nix v. Whiteside, 475 U.S. 157, 175 (1986) (Strickland‘s prejudice component does not require defendant to establish attorney‘s errors “more likely than not” altered result).
Preclusion
¶ 14
Lesser-Included Offense Instruction
¶ 15 In its order denying relief, the trial court relied on Riggins‘s affidavit, submitted with the state‘s response, to conclude she had made a reasoned “tactical decision” to withdraw Speers‘s proposed jury instruction on the lesser-included offense of contributing to the delinquency of a minor.4 The court noted our supreme court in State v. Lee held “[disagreements in trial tactics will not support a claim of ineffectiveness provided the conduct has some reasoned basis,” 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984), and concluded, on that ground, that Speers had failed to state a colorable claim that counsel performed deficiently.
¶ 16 We agree that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. But in the context of an ineffective assistance claim, “[strategic decisions are ‘conscious, reasonably informed decision[s] made by an attorney with an eye to benefitting his client.‘” Denz, 232 Ariz. 441, ¶ 11, 306 P.3d at 102, quoting Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir.2001). Based on Riggins‘s affidavit, her acquiescence in omission of the lesser-included instruction was not a reasoned choice among strategic options, designed to benefit her client. See id. Instead, she maintained her decision was based on her legal conclusion that Speers was not entitled to the instruction and her determination that she could not “make an ethical, good faith argument requesting [it].”
¶ 17 Specifically, Riggins stated she had been aware of Speers‘s request for the jury instruction and, after she was appointed to represent him but before final instructions were settled, she researched whether the instruction “was supported by the law and the facts presented at trial.” She said her research had “revealed that [contributing to the delinquency of a minor is] a lesser-included offense to child molestation, but not if the defense is that the defendant never inappropriately touched the victim.” According to Riggins‘s affidavit, the trial court brought up Speers‘s request when settling final instructions and said it did not believe the lesser-included instruction applied; Riggins agreed and did not object to its omission, “[b]ased on her research and the defense presented at trial.”
¶ 18 “[T]rial decisions that appear to be based on counsel‘s beliefs respecting his or her duty to the court rather than his or her professional assessment of strategic options are . . . subject to judicial review” in an ineffective assistance claim, and counsel may have performed deficiently if she was “unreasonably mistaken” about the law. Lee, 142 Ariz. at 218-19, 689 P.2d at 161-62; see also Hinton v. Alabama, 571 U.S. 263, 274 (2014) (counsel‘s performance may be found deficient based on “inexcusable mistake of law“). Citing Riggins‘s affidavit, Speers argues she relied on an incorrect legal analysis to the extent she concluded it would have been “improper under Arizona law to give the lesser charge where an ‘all or nothing’ defense is posed” and failed to consider evidence at trial that supported the instruction.
¶ 19 A trial court must instruct the jury on all offenses “necessarily included in the offense charged” if asked to do so.
¶ 20 In Wall, decided the year before Speers‘s trial, our supreme court clarified that “evidence in the record can be sufficient to require a lesser-included offense instruction even when the defendant employs an all-or-nothing defense,” although, “[a]s a practical matter, when a defendant asserts an all-or-nothing defense such as alibi or mistaken identity, there will ‘usually [be] little evidence on the record to support an instruction on the lesser included offenses.‘” 212 Ariz. 1, ¶¶ 29-30, 126 P.3d at 153, quoting State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984). The court further explained evidence is “sufficient to require a lesser-included offense instruction if two conditions are met. The jury must be able to find that (a) the State failed to prove an element of the greater offense and (b) the evidence is sufficient to support a conviction on the lesser offense“; in other words, “the evidence must be such that a rational juror could conclude that the defendant committed only the lesser offense.” Id. ¶ 18; see also State v. Celaya, 135 Ariz. 248, 252-53, 660 P.2d 849, 853-54 (1983) (instruction warranted when, from evidence presented, jury could rationally find state failed to prove disputed element distinguishing greater offense from lesser).
¶ 21 Our supreme court has long held that contributing to the delinquency of a child is a lesser-included offense of child molestation, as Riggins recognized in her affidavit. See 5 State v. Jerousek, 121 Ariz. 420, 428, 590 P.2d 1366, 1374 (1979); State v. Sutton, 104 Ariz. 317, 318-19, 452 P.2d 110, 111-12 (1969). “A person commits molestation of a child by intentionally or knowingly engaging in . . . sexual contact . . . with a child who is under fifteen years of age,”
¶ 22 As Speers argued below, contributing to a child‘s delinquency is a broadly drawn offense, such that whether “the act falls within the statutory prohibition is a question for the trier of fact.” State v. Hixson, 16 Ariz. App. 251, 253, 492 P.2d 747, 749 (1972) (noting “myriad of acts” might satisfy definition; evidence defendant “French-kiss[ed]” thirteen-year-old girl and gave her cigarette sufficient to withstand motion for acquittal); see also
¶ 23 With respect to the evidence at issue here, Speers points out that, although he
¶ 24 Based on the record before us, including, in particular, Higgins‘s affidavit, we conclude Speers stated a colorable claim that Riggins performed deficiently in abandoning his request for a jury instruction on the lesser-included offense of contributing to the delinquency of a minor.
Alleged Misconduct of Juror Two
¶ 25 When the trial court was interviewing the jurors individually about whether they could disregard the extrinsic information provided by juror eleven, juror sixteen mentioned that another juror, determined to be juror two, also had commented “[t]hat she was familiar with similar situations” to those “presented . . . in court.” The court made no further inquiry, of either that juror or juror two, regarding the substance of any such comments. In arguing for a mistrial, Riggins maintained the court‘s colloquy provided an insufficient basis to proceed, “particularly regarding personal experiences that apparently had been brought into the jury deliberations,” such as juror sixteen‘s mention that juror two had shared “some personal experience she may have had.” When Riggins referred to the “inflammatory” “nature of this information,” the court stopped her to ask, “Because of the—what was the pronoun ‘this‘? I didn‘t catch—what do you mean ‘this‘? Because this information is so inflammatory. Which . . . information?” Riggins responded that if juror eleven “was saying what a major impact emotionally this had on his family” and juror two “shar[ed] personal experiences of a similar nature,” such “information . . . can very easily sway a jury considering these very, very difficult issues in this case.”
¶ 26 According to juror two‘s affidavit, she herself had been molested as a child and had “reported the molestation,” along with “the fact that [she] remembered all of the details,” to all members of the jury. And C.W. stated in her affidavit that she had, with Riggins‘s permission, attempted to interview jurors after the verdicts were returned, and had told Riggins, before a motion for new trial was filed, that two jurors told her juror two had said during deliberations that she remembered the molestation “like it happened yesterday.”
¶ 27 In a motion for new trial, Riggins argued the trial court had erred in denying a mistrial based on juror misconduct. Although the motion focused on juror eleven‘s revelation of his conversation with a relative, Riggins suggested those statements reportedly “resulted in a response of Juror # 2, who indicated she had the same experiences regarding abuse or molestation”6 and was not questioned further. In a footnote to a discussion of juror eleven‘s failure to disclose during voir dire that a family member had been a victim of a crime, Riggins wrote, “It appears that other trial jurors may have been similarly misleading during voir dire. For example, Juror #2 never revealed her prior molestation during voir dire despite
¶ 28 In denying Speers‘s claim that Riggins was ineffective in “failing to perfect,” in her motion for a new trial, claims of jury misconduct and bias by juror two, thus precluding him from raising the issue on appeal, the trial court wrote,
[Speers‘s] assertion that the issue of juror misconduct was not properly preserved for appeal is, at best, speculation. The issue was not raised by [Speers] on direct appeal, nor did the Court of Appeals indicate or find that the issue could not be reviewed due to lack of a trial court record. Coupled with the Court of Appeals’ ability to review claims for fundamental error, even when an issue is not directly raised, the Court finds there is no basis to conclude the issue could not have been raised on appeal. The unfounded conclusory assertion that Ms. Riggins did not make a proper record is insufficient to support a finding of ineffective assistance of counsel.
¶ 29 In view of Higgins‘s affidavit, we conclude the trial court abused its discretion in finding Speers failed to state a colorable claim of deficient performance on this issue. In Higgins‘s opinion, Riggins was “clearly ineffective” in failing to investigate juror two‘s alleged misconduct and in “fail[ing] to preserve the issue for direct appellate review.” As Higgins suggests, without an “affidavit or other supporting documentation,” there was no record evidence to support Riggins‘s assertion that juror two had been molested as a child, and nothing to indicate she had reported her clear memory of that event to the jury during deliberations. Even when reviewing for fundamental error, we may only consider error that “affirmatively appear[s] in the record.” State v. Diaz, 223 Ariz. 358, ¶ 13, 224 P.3d 174, 177 (2010) (appellate court will not reverse conviction “based on speculation or unsupported inference“). Speers has stated a colorable claim that counsel performed deficiently in this regard.
Prejudice
¶ 30 In its order, the trial court addressed the issue of prejudice only briefly, stating Speers had not “set forth any reasonable theory of prejudice, let alone any legal or factual basis to support a finding of prejudice,” and, therefore, “failed to demonstrate that the outcome was unfairly prejudiced by, or would have been different but for, the allegedly deficient performance of trial counsel.” Based on Speers‘s petition, appendix documents, and portions of the record cited, we cannot agree. As Speers argued below, his defense relied on expert testimony “concerning the suggestive nature of the children‘s interviews in generating false memories” and was “consistent with the children‘s memory of being tickled, having their but-tock[s] touched, as well as sitting on [Speers‘s] lap, during the reported acts.” His primary theory of defense appears to have been that the children had “falsely supplement[ed] these memories through subtle suggestion from an outside source.” His suggestion that he was prejudiced by counsel‘s omission of a lesser-included offense instruction and her failure to investigate and pursue evidence that a juror had proclaimed her own clear memory of childhood molestation is sufficiently plausible to entitle him to an evidentiary hearing.
¶ 31 To the extent Speers has framed the issue of prejudice in the context of counsel‘s failure to preserve these claims for appeal, however, we cannot agree that the result of his appeal is the proper focus for assessing prejudice. He is challenging his attorney‘s conduct at his trial, and must show that Riggins‘s alleged unprofessional errors and omissions were sufficiently prejudicial that they “undermine[d] confidence in the outcome” of that proceeding. Strickland, 466 U.S. at 694, 696 (stating “ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged“).
Other Claims
¶ 32 With respect to Speers‘s claim that Riggins impermissibly interfered with
¶ 33 Nor did the trial court abuse its discretion in summarily denying relief based on alleged “newly discovered” evidence of misconduct by juror thirteen. In addition to issues of due diligence identified by the court, we conclude the interview with juror thirteen that Speers submitted below fails to support a colorable claim that the juror either materially omitted or materially misrepresented information about his law enforcement experience and whether he “kn[e]w” Speers.
Disposition
¶ 34 For the foregoing reasons, we grant review and grant partial relief. The trial court‘s order is vacated in part and the case is remanded for an evidentiary hearing limited to those issues identified in this decision.
ESPINOSA, Judge
ARIZONA COURT OF APPEALS, DIVISION TWO