STATE OF ARIZONA, Respondent, v. RONALD BRUCE BIGGER, Petitioner.
No. CR-20-0383-PR
Supreme Court of the State of Arizona
August 16, 2021
251 Ariz. 402 | 492 P.3d 1020
Appeal from the Superior Court in Pima County, The Honorable Nanette M. Warner, Judge, The Honorable John C. Hinderaker, Judge, The Honorable Richard D. Nichols, Judge, No. CR20043995-001, AFFIRMED. Opinion of the Court of Appeals, Division Two, 250 Ariz. 174 (App. 2020), VACATED.
COUNSEL:
Kent P. Volkmer, Pinal County Attorney, Geraldine L. Roll (argued), Deputy County Attorney, Florence, Attorneys for State of Arizona
David J. Euchner (argued), Pima County Public Defender‘s Office, Tucson, Attorney for Ronald Bruce Bigger
Amy Knight, Knight Law Firm PC, Tucson, Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice
Timothy J. Agan, Kerri L. Chamberlin, Office of the Legal Advocate, Phoenix; Sandra L.J. Diehl, Coconino County Public Defender‘s Office, Flagstaff, Attorneys for Amicus Curiae Arizona Public Defender Association
Mark Brnovich, Arizona Attorney General, Nicholas Klingerman (argued), Section Chief Counsel, Lindsay St. John, Assistant Attorney General, Tucson, Attorneys for Amicus Curiae Arizona Attorney General
JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, JUSTICES BOLICK, BEENE, and MONTGOMERY, and JUDGE SWANN joined.*
¶1 We consider whether (1) a defendant must present a standard of care expert affidavit to support his ineffective assistance of counsel (“IAC“) claim; (2) Perry v. New Hampshire, 565 U.S. 228 (2012), caused a significant change in Arizona law; and (3)
BACKGROUND
¶2 Ronald Bigger was convicted of first degree murder and conspiracy to commit first degree murder and was sentenced to concurrent prison terms of natural life. The court of appeals affirmed his convictions and sentences on March 30, 2012. On May 2, 2012, Bigger filed a motion for an extension of time for filing his notice of post-conviction relief (“PCR“), which the trial court granted. Bigger filed his notice on May 21, 2012, which was untimely. Due to multiple extensions, he did not file his PCR petition until January 2016.
¶3 In his petition, Bigger argued that he received IAC during trial, and that Perry—which addressed witness identification evidence—constituted a significant change in the law that would probably overturn his conviction or sentence. See
* Pursuant to article 6, section 3 of the Arizona Constitution, the Honorable Peter Swann, Judge of the Arizona Court of Appeals, Division One, was designated to sit in this matter.
¶4 The court of appeals considered the timeliness of Bigger‘s PCR petition, his IAC claims, and whether Perry caused a significant change in Arizona law. First, the court found that Bigger‘s PCR petition was not time barred, pursuant to
¶5 We granted review to (1) elucidate the requirements for presenting a colorable IAC claim, (2) clarify the impact of Perry on Arizona law, and (3) determine the constitutionality of
DISCUSSION
¶6 We review a trial court‘s ruling on a PCR petition for an abuse of discretion, which occurs if the court makes an error of law or fails to adequately investigate the facts necessary to support its decision. State v. Pandeli, 242 Ariz. 175, 180 ¶ 4 (2017). We review legal conclusions de novo. Id.
I.
¶7 We first consider the standard a defendant must satisfy to establish a colorable IAC claim.
A.
¶8 To prevail on an IAC claim, a defendant must demonstrate that counsel‘s conduct fell below an objective standard of reasonableness and that he was prejudiced thereby. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Denz, 232 Ariz. 441, 443 ¶ 6 (App. 2013). “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.” Pandeli, 242 Ariz. at 180 ¶ 5 (quoting Hinton v. Alabama, 571 U.S. 263, 273 (2014)); see also Strickland, 466 U.S. at 687-88 (noting that more specific guidelines beyond whether counsel‘s representation fell below an objective standard of reasonableness are not appropriate).
¶9 “The relevant inquiry for determining whether the [defendant] is entitled to an evidentiary hearing is whether he has alleged facts which, if true, would probably have changed the verdict or sentence.” State v. Amaral, 239 Ariz. 217, 220 ¶ 11 (2016). The claim is subject to summary dismissal “[i]f the alleged facts would not have probably changed the verdict or sentence.” Id.; see also Strickland, 466 U.S. at 694 (finding that a challenger must demonstrate “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different“). If a defendant presents a colorable claim, he is entitled to a hearing to determine whether counsel rendered effective assistance. See
¶10 “A defendant‘s lawyers are not deficient merely for making errors.” State v. Miller, 251 Ariz. 99, 102 ¶ 10 (2021). “Representation falls below the ‘prevailing professional norms’ of the legal community if counsel‘s performance was unreasonable under the circumstances.” Id. (quoting Hinton, 571 U.S. at 273). Often, the deficiency inquiry will focus on counsel‘s defense strategy. We presume
a defendant can show that “counsel‘s decision was not a tactical one but, rather, revealed ineptitude, inexperience or lack of preparation.” State v. Goswick, 142 Ariz. 582, 586 (1984); see also State v. Valdez, 167 Ariz. 328, 329-30 (1991) (noting that a strong presumption exists that defense counsel provided effective assistance).
¶11 When evaluating the reasonableness of counsel‘s strategic decisions, the foundational inquiry is the rationale for the decision. See generally, e.g., Pandeli, 242 Ariz. at 181-91 ¶¶ 9-68 (evaluating the reasoning behind counsel‘s decisions); Goswick, 142 Ariz. at 586 (considering, for example, that “[t]here are a number of reasons why an attorney may choose not to call a witness“); Strickland, 466 U.S. at 689 (noting that decisions must be evaluated from counsel‘s perspective at the time). The scrutiny of counsel‘s performance must be highly deferential and “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” Id. at 689.
¶12 Notably, “[m]atters of trial strategy and tactics are committed to defense counsel‘s judgment” and generally cannot serve as the basis for an IAC claim. State v. Beaty, 158 Ariz. 232, 250 (1988); see also Pandeli, 242 Ariz. at 181 ¶ 8 (“Simply disagreeing with strategy decisions cannot support a determination that representation was inadequate.“); Strickland, 466 U.S. at 690. However, tactical or strategic decisions by trial counsel are not incontrovertibly beyond a court‘s review. See, e.g., State v. Gerlaugh, 144 Ariz. 449, 455 (1985) (reasoning that “[d]isagreements in trial strategy will not support a claim of ineffective assistance so long as the challenged conduct has some reasoned basis” (emphasis added)); Pandeli, 242 Ariz. at 183 ¶ 21 (rejecting IAC claim based on failure to cross-examine because it “was a strategic decision that defendant has not demonstrated falls below the level expected of a reasonably competent defense attorney“); Strickland, 466 U.S. at 681 (listing relevant factors courts may consider in deciding whether certain strategic choices were reasonable, including “the experience of the attorney, the inconsistency of unpursued and pursued lines of defense, and the potential for prejudice from taking an unpursued line of defense“).
¶13 Bigger argues that the trial court and court of appeals imposed a requirement for a standard of care expert affidavit to sustain his IAC claim. We disagree. The court of appeals’ opinion expressly refutes Bigger‘s contention:
Bigger had not shown counsel‘s decisions were other than tactical or that [counsel‘s] performance had fallen below prevailing professional norms . . . [and] Bigger had not offered “an affidavit from an expert witness” to support his claims or otherwise shown that counsel‘s decisions, even if ultimately unsuccessful, were the result of a lack of experience or preparation.
State v. Bigger, 250 Ariz. 174, 182 ¶ 22 (App. 2020) (emphasis added).
¶14 The court of appeals correctly recognized that this Court has adopted the objective reasonableness standard for deficient performance and explained that courts can “consult various sources to decide whether counsel‘s actions were reasonable considering the circumstances.” Id. ¶ 23 (quoting State v. Nash, 143 Ariz. 392, 397 (1985)). Of note, we observed that trial judges conducting Rule 32 hearings may consider expert testimony, but cautioned that guidelines as to what is reasonable—such as American Bar Association standards—do not prescribe rules that counsel must follow, as “[a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” Nash, 143 Ariz. at 398 (quoting Strickland, 466 U.S. at 689). But we also clarified that a reasonableness determination can be made without reference to any external authority and without an evidentiary hearing, as trial judges will ordinarily possess the expertise necessary to make such a determination.
¶15 Here, the court of appeals correctly articulated the law when it explicitly noted the absence of an expert affidavit requirement: “[A]lthough an affidavit may not always be required to establish that counsel‘s performance did not meet prevailing professional standards, a defendant must do more than disagree with, or posit alternatives to, counsel‘s decisions to overcome the presumption of proper action.” Bigger, 250 Ariz. at 182 ¶ 23 (emphasis added).
B.
¶16 We next apply the standard for a colorable IAC claim to the trial court‘s ruling dismissing Bigger‘s IAC claims. We agree with the court of appeals’ conclusion that there is no evidence that counsel‘s representation in this case fell below objectively reasonable standards. For the following reasons, unlike in cases such as State v. Vickers, 180 Ariz. 521, 526-27 (1994)—in which counsel‘s preparation for trial was haphazard and the record devoid of any logical basis for counsel‘s decisions—we conclude that the court did not abuse its discretion in dismissing Bigger‘s claims.
¶17 First, Bigger alleges that trial counsel was ineffective “by putting forth a theory of the case that was unfounded and completely contradicted by the evidence” when she argued that Bigger‘s co-defendant Bradley Schwartz killed the victim rather than present a viable third-party culpability theory. On this point, the trial court observed: “The available evidence shows that trial counsel conducted a proper investigation prior to settling on a trial strategy. She investigated and litigated over alternative theories before abandoning them. Ultimately, counsel‘s trial strategy was reasonable at the time she made her decisions and considering the options available to her.” We agree. Although blaming Schwartz for the murder may not have been a winning strategy, counsel investigated alternatives, and her decision was not objectively unreasonable. See, e.g., Strickland, 466 U.S. at 690-91 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . .“).
¶18 Second, Bigger contends that trial counsel was ineffective “by stipulating with the prosecution to make no hearsay objections to any Schwartz statements that either party wished to introduce.” The trial court—in evaluating four statements that Bigger argues would have been precluded—demonstrated that the statements would have, in fact, been admissible and were otherwise consistent with trial counsel‘s strategy, which the court refrained from second-guessing. See, e.g., Pandeli, 242 Ariz. at 181 ¶ 8 (rejecting trial court‘s method of “repeatedly second-guessing counsel‘s strategy decisions“). We agree. Stipulating to the admission of certain hearsay evidence was a tactical decision that Bigger failed to demonstrate fell below the level expected of a reasonably competent defense attorney. See, e.g., Goswick, 142 Ariz. at 586 (finding no IAC if counsel‘s decision had a reasoned basis and was not the result of “ineptitude, inexperience or lack of preparation“).
¶19 Third, Bigger argues that trial counsel was ineffective “by rescinding a character defense when the prosecution disclosed evidence that would not have been admitted” and by failing to “rel[y] on the character trait of ‘valuing human life’ rather than ‘non-violence.‘” But, as the trial court reasoned, defense counsel investigated and disclosed witnesses for a character defense and withdrew the defense only after concluding that rebuttal evidence disclosed by the State undermined it; counsel focused, instead, on another witness‘s time-of-death testimony because it would better bolster Bigger‘s alibi. In sum, counsel weighed the character trait evidence‘s strengths and weaknesses and proceeded accordingly. We therefore agree that counsel‘s decision to forego the character defense was not unreasonable. See, e.g., Pandeli, 242 Ariz. at 183 ¶ 16 (“Although defense counsel, in hindsight, may have ‘dropped the ball’ by not calling [a specific witness] . . . that mistake did not
¶20 Fourth, Bigger asserts that trial counsel was ineffective “by making claims during opening statements that could only have been testified to by [Bigger], knowing that [Bigger] would not be testifying.” The trial court determined that two of the three challenged claims could have been testified to by other witnesses. Regarding the third challenged claim of alleged inconsistency between counsel‘s opening statement and a witness‘s testimony, the trial court underscored that counsel‘s decisions were uniform with her trial strategy—given the theory of the case that Schwartz was the murderer—and her “adherence to a theory is more indicative of consistency and tenacity than deficient performance.” Moreover, the court considered that, even if trial counsel was deficient for underdelivering on claims made during opening statements, Bigger failed to establish that he suffered prejudice in the face of the totality of the evidence. See Strickland, 466 U.S. at 694-95. Indeed, he conceded that trial counsel made “no explicit promise[s]” in her opening statement and that she presented a “solid alibi witness.” Finally, the jury was properly instructed about the non-evidentiary value of opening statements. Accordingly, we agree with the trial court that Bigger failed under both Strickland prongs to present a colorable claim warranting an evidentiary hearing. See, e.g., Pandeli, 242 Ariz. at 183 ¶ 21 (noting that “[n]o finding
was made that the decision lacked ‘some reasoned basis,’ and the evidence would not support such a finding“).
¶21 Fifth, Bigger claims that counsel was ineffective “for calling Dr. Keen, where Keen‘s testimony was not as promised in opening statement and did not support the defense theory that Schwartz was the real killer.” Yet this decision was another tactical choice that did not constitute IAC because Dr. Keen‘s testimony regarding an 8:30 p.m. time-of-death served to exonerate Bigger, as witness testimony placed him across town at 8:19 p.m. And, although Dr. Keen‘s characterizations about wounds on the victim and Bigger were potentially damaging to the defense, counsel investigated the evidence, thoroughly questioned Dr. Keen, and elicited beneficial testimony consistent with the theory of the case. We concur in the trial court‘s conclusion that counsel‘s decision was reasonable. See, e.g., id. at 182-83 ¶¶ 15-16 (reasoning that counsel‘s decisions were “the product of a reasoned (even if mistaken) strategic judgment” and did not constitute IAC).
¶22 The record is devoid of any evidence that defense counsel was unprepared or acted unreasonably in representing Bigger. As discussed, when assessing the reasonableness of strategic decisions, courts may consider any information that informs the analysis—including an expert opinion. However, courts may not simply substitute their after-the-fact judgment for counsel‘s during trial. See, e.g., id. at 181 ¶ 8; Miller, 251 Ariz. at 103 ¶ 12 (disagreeing with trial court that defendant proved counsel was ineffective by merely pointing to an error in the jury instruction that was given). Here, even if counsel‘s tactical decisions were erroneous, none constituted IAC. The trial court therefore did not abuse its discretion in ruling that Bigger failed to present colorable IAC claims.
II.
¶23 We next consider whether Perry caused a significant change in Arizona law. It did not.
¶24 The State relied, in part, on an eyewitness identification to prove Bigger‘s guilt. At the time of trial, the relevant jury instruction—which lists the factors a jury may consider in determining whether an in-court identification is reliable—could only be given if the defendant proved to the trial court that a potentially faulty identification was due to
suggestive police procedures, see State v. Dessureault, 104 Ariz. 380, 384 (1969); State v. Osorio, 187 Ariz. 579, 582 (App. 1996), which Bigger failed to do. After his trial, Perry and
¶25 Bigger argues that Perry entitles him to relief because it caused a significant change in the law. The trial court determined that Bigger was, in fact, seeking relief in reliance on Nottingham, but found that, because his case had become final before Nottingham was decided, and because Nottingham did not apply retroactively, relief was unwarranted. The court of appeals agreed with the trial court. We, however, conclude that Perry did not constitute a significant change in Arizona law and hold that Nottingham was incorrectly decided insofar as it suggests otherwise.
¶26 In Perry, the Supreme Court considered “whether the Due Process Clause requires a trial judge to conduct a preliminary assessment of the reliability of an eyewitness identification made under suggestive circumstances not arranged by the police.” 565 U.S. at 236. Perry asserted that, based on rationales underlying the Court‘s prior decisions, trial judges were required to prescreen eyewitness evidence for reliability any time an identification was made under suggestive circumstances. Id. at 240. The Court disagreed, reasoning that “[t]he fallibility of eyewitness evidence does not, without the taint of improper state conduct, warrant a due process rule requiring a trial court to screen such evidence for reliability before allowing the jury to assess its creditworthiness.” Id. at 245 (emphasis added). The Court therefore was unwilling to enlarge the domain of due process, and instead acknowledged the existence of “other safeguards built into our adversary system that caution juries against placing undue weight on eyewitness testimony of questionable reliability,” including vigorous cross-examination, protective rules of evidence, and “[e]yewitness-specific jury instructions, which many federal and state courts have adopted, . . . [that] warn the jury to take care in appraising identification evidence.” Id. at 233, 245-46.
¶27 The court of appeals in Nottingham concluded that Perry modified Arizona law, stating:
By its reasoning, the [Perry] Court clearly assumed that trial courts would provide cautionary instructions, alerting the jury to the dangers of identification evidence secured through
a suggestive procedure, even when the suggestive pretrial identification was not due to “improper state conduct” and therefore was not subject to any judicial pretrial screening to comply with due process.
Nottingham, 231 Ariz. at 26 ¶ 12. But see Perry, 565 U.S. at 248 (“[T]he [federal] Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.“). Nottingham further reasoned that Perry suggested a cautionary jury instruction is required when a defendant has presented evidence that a pretrial identification has been made under suggestive circumstances. Nottingham, 231 Ariz. at 26 ¶ 13. We reject Nottingham‘s characterization of Perry‘s holding.
¶28 A significant change in the law pursuant to
¶29 As discussed, Perry held that:
When no improper law enforcement activity is involved, . . . it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination,
protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.
565 U.S. at 233. Perry‘s references to jury instructions underscore, but do not mandate, the utility of cautionary jury instructions—with or without the presence of unduly suggestive police procedures—as one of the
safeguards built into the adversarial system relative to eyewitness testimony of questionable reliability. Id. at 245. “Finding no convincing reason to alter [its] precedent,” the Court concluded that a preliminary judicial inquiry is not required when the identification is not procured under unnecessarily suggestive circumstances arranged by law enforcement. Id. at 248. Consequently, Perry affirmed the Supreme Court‘s jurisprudence and did not clearly break from the past.
¶30 Nottingham took Perry‘s narrow holding—that is, no judicial inquiry is required when the identification was not procured under suggestive circumstances involving police—and transformed it into a broader mandate requiring a preliminary jury instruction when the identification was procured under suggestive circumstances, or otherwise upon request. This stretches Perry too far. We therefore reject Nottingham insofar as it suggested that Perry effected a change in Arizona law.
¶31 We also briefly note that neither Perry nor Nottingham would have required reversal of Bigger‘s conviction or sentence. See, e.g.,
III.
¶32 We now consider whether
¶33 The parties do not dispute, and the court of appeals agreed, that Bigger‘s untimely PCR filing was not his fault because he was represented by counsel at that time. Bigger argues that
¶34 Under the
¶35 The
¶36 Under similar circumstances, we have held comparable statutes to be procedural
substantive, the time limits involved are purely procedural, as they implement the right to post-conviction relief. Id. at 411. These cases guide our reasoning.
¶37 “We will recognize ‘statutory arrangements which seem reasonable and workable’ and which supplement the rules we have promulgated. However, when a conflict arises, or a statutory rule tends to engulf a general rule of admissibility, we must draw the line.” State ex rel. Collins v. Seidel, 142 Ariz. 587, 591 (1984) (quoting Alexander v. Delgado, 507 P.2d 778, 779 ¶ 8 (N.M. 1973)). Here,
CONCLUSION
¶38 For the reasons set forth, we vacate the court of appeals’ opinion and affirm the trial court‘s ruling dismissing Bigger‘s PCR petition.
JUSTICE LOPEZ