Opinion
2 CA-CR 2012-0368-PR
12-28-2012
THE STATE OF ARIZONA, Petitioner, v. GALAREKA HARRISON, Respondent.
Barbara LaWall, Pima County Attorney By Jacob R. Lines Tucson Attorneys for Petitioner Isabel G. Garcia, Pima County Legal Defender By Alex D. Heveri Tucson Attorneys for Respondent
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
Not for Publication
Rule 111, Rules of
the Supreme Court
PETITION FOR REVIEW FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20073484
Honorable Scott Rash, Judge
REVIEW GRANTED; RELIEF DENIED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines
Tucson
Attorneys for Petitioner
Isabel G. Garcia, Pima County Legal Defender
By Alex D. Heveri
Tucson
Attorneys for Respondent
ECKERSTROM, Presiding Judge. ¶1 The state seeks review of the trial court's order granting Galareka Harrison post-conviction relief pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court clearly has abused its discretion. See State v. Swoopes, 216 Ariz. 390, ¶ 4, 166 P.3d 945, 948 (App. 2007). The state has not met its burden of establishing such abuse here. ¶2 Harrison was convicted after a jury trial of first-degree murder, taking the identity of another, and three counts of forgery. The trial court sentenced her to imprisonment for natural life for first-degree murder and imposed lesser, concurrent sentences for her other convictions. We affirmed her convictions and sentences on appeal. State v. Harrison, No. 2 CA-CR 2008-0407 (memorandum decision filed Apr. 14, 2010). ¶3 Harrison then sought post-conviction relief pursuant to Rule 32, arguing her trial counsel had been ineffective in failing to properly investigate and present evidence related to her "state of mind and character traits at the time she committed the offenses," which might have resulted in a conviction of second-degree, rather than first-degree, murder. She further asserted counsel had been ineffective in failing to investigate and present evidence relevant to her sentencing, specifically that proper investigation would have revealed "Harrison's tortured family history, prior diagnosis for anxiety disorder, her poor level of education, her utter lack of preparation for college, infantilism, lack of identity or individuation, eating disorders, signs of isolation, . . . and her near psychotic break at the time she committed the murder." She reasoned that, had the sentencing court been given this information, the court "undoubtedly" would have imposed a life sentence with the possibility of parole after twenty-five years. ¶4 Attached to the petition were extensive exhibits detailing Harrison's lack of social interaction as a child and teenager and her exposure to repeated and serious incidents of domestic violence in the family home against Harrison's mother and siblings, leading to her parents' separation. Additionally, medical records showed Harrison had sought treatment for extreme anxiety following an incident of domestic violence and had been diagnosed with anxiety disorder and depressive disorder. The exhibits further detailed Harrison's significant emotional problems at the time of her offenses caused by her adjustment to attending college, as well as the financial problems she faced because she erroneously had believed her scholarship would cover all her education and living costs. ¶5 Those exhibits included a supplemental report by Dr. Thomas Gaughan, who had been hired by trial counsel to provide a psychiatric evaluation of Harrison for sentencing. In that report, Gaughan stated his initial evaluation had been "limited" because there was no background information available, including interviews of family members and medical or psychiatric records. Gaughan noted that, having reviewed the new information gathered by Rule 32 counsel, had he had that information available previously, "it would have greatly altered the course of [his] evaluation and would have altered [his] findings." He described his earlier report as "probably misleading to her attorney and the court." Gaughan further opined that Harrison's family and medical history suggested the existence of a variety of mental and emotional problems, including Post Traumatic Stress Disorder. Harrison also provided the court with Gaughan's affidavit, in which he avowed he had discussed with trial counsel the limited information available to him at the time of his first evaluation, although he acknowledged his first report did not "clearly state the extent of these limitations in [his] evaluation, nor their potential to restrict [his] conclusions." ¶6 The trial court summarily denied Harrison's claim that counsel had been ineffective at trial, but found her sentencing claim colorable and set an evidentiary hearing. At that hearing, trial counsel testified he had hired Gaughan to evaluate Harrison's "mental state . . . at the time she committed her offenses." Counsel acknowledged Gaughan had requested Harrison's medical records and "any and all interviews of [her] family and friends." Counsel stated, however, that he had not provided Gaughan with medical records because he "did not have any." Counsel maintained he had not obtained medical records because he was unaware there were such records, but he admitted he had not asked the family if such records were available. He further acknowledged telling Gaughan that Harrison had received a "full-ride scholarship" for college and that Harrison came from "a good family." Counsel also testified he had not asked the family about a history of domestic violence and agreed the family would be unlikely to volunteer such information. He further stated that Harrison and her family had never given him any indication there had been domestic violence or that Harrison had sought mental health treatment and that he had no reason to believe the information he had obtained from Harrison and her family was false. ¶7 The trial court determined that it was reasonable for trial counsel to have relied on statements by Harrison, her family, and friends of the family that her home life "was loving, supportive and without abuse" and therefore found counsel "would find little need to further investigate mitigation evidence related to [Harrison]'s dysfunctional family." The court noted, however, that counsel had failed to provide Gaughan with requested medical records and that those records "would have presented some evidence that [Harrison]'s family life was something other than loving, supportive and without abuse." The court further observed that the sentencing court had stated in the sentencing minute entry that it "would have considered a life sentence" if Harrison "had a history of abuse or trauma . . . which may have been a contributor or help explain her acts." Thus, the court concluded "justice requires at least the opportunity to present" the "proposed mitigation evidence" at sentencing and granted relief, ordering that Harrison be resentenced. ¶8 To prevail on a claim of ineffective assistance of counsel, Harrison was required to demonstrate that her counsel's conduct fell below prevailing professional norms and that the conduct prejudiced her. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To demonstrate prejudice, Harrison must show there is a "'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Lee, 142 Ariz. 210, 214, 689 P.2d 153, 157 (1984), quoting Strickland, 466 U.S. at 694; accord State v. Gerlaugh, 144 Ariz. 449, 455, 698 P.2d 694, 700 (1985). ¶9 On review, the state argues there was no deficient performance by counsel, based on the trial court's conclusion that it had been "reasonable" for trial counsel not to seek further mitigation evidence in light of the information he had received from Harrison and her family and friends. This argument misconstrues the court's ruling. The court found trial counsel had not obtained the materials Gaughan had requested. Although the court did not expressly conclude this failure fell below prevailing professional norms, that finding is implicit in the court's ruling granting relief. See State v. Medrano, 185 Ariz. 192, 196, 914 P.2d 225, 229 (1996) (reviewing court presumes trial court knows and follows law). The state has not demonstrated the court abused its discretion in concluding counsel's conduct fell below prevailing professional norms because counsel did not provide the expert he retained with materials the expert had informed counsel he needed to provide a complete evaluation. Nor does the state contest the court's finding that, had those medical records been provided to Gaughan, they would have led to the discovery of considerable mitigating evidence. ¶10 The state further argues the trial court erred in granting Harrison relief because it "did not find prejudice." The state asserts the court's comment that "[w]hether the proposed mitigation evidence would have resulted in a life sentence . . . is debatable" demonstrates any prejudice was speculative. It further argues that, by stating Harrison should be given "at least the opportunity to present that evidence at sentencing," the trial court used the incorrect legal standard to evaluate prejudice. Although we agree with the state that portions of the court's discussion of prejudice are somewhat qualified, the court also expressly found the mitigation evidence "would have been relevant to the sentencing judge's decision to impose a natural life [sentence] versus a life sentence." This finding is congruent with a determination that the mitigation evidence was reasonably likely to have changed Harrison's sentence. See Gerlaugh, 144 Ariz. at 455, 698 P.2d at 700. In any event, as we noted above, we presume the court knew and followed the law, Medrano, 185 Ariz. at 196, 914 P.2d at 229, and therefore that it understood Harrison's burden of demonstrating the mitigation evidence was reasonably likely to change her sentence. See Gerlaugh, 144 Ariz. at 455, 698 P.2d at 700. ¶11 The trial court's prejudice finding is amply supported by the record. In its sentencing minute entry, the sentencing court stated it had imposed the natural life sentence, instead of life with the possibility of parole, in part because "[t]here was no evidence of a significant mental disorder . . . that might explain [Harrison]'s actions in planning and then brutally killing [the victim]." Also relevant to that determination, the court further noted Harrison had been "raised in an intact family with strong positive values" and stated it "would have imposed a life sentence if [it] had received evidence that [Harrison] had [a] significant mental disorder . . . that affected [her] decision-making processes and/or perceptions of her situation and her alternatives at the time of the murder." The court additionally stated it would have considered a life sentence "if [Harrison] had a history of abuse or trauma." ¶12 As the trial court noted, the mitigation evidence provided by Rule 32 counsel clearly is material to the possible grounds for a lesser sentence listed by the sentencing court. In light of the sentencing court's express concerns, it is without question that trial counsel's deficient performance prejudiced Harrison. See Gerlaugh, 144 Ariz. at 455, 698 P.2d at 700. For the reasons stated, although we grant review, we deny relief.
We recognize that Rule 32.8(d) and A.R.S § 13-4238(D) require a trial court in these circumstances to "make specific findings of fact and state expressly its conclusions of law relating to each issue presented." But the state has not argued that the trial court's findings here did not sufficiently comply with that requirement, and we therefore do not address this potential issue further.
______________________
PETER J. ECKERSTROM, Presiding Judge
CONCURRING: ______________________
JOSEPH W. HOWARD, Chief Judge
______________________
J. WILLIAM BRAMMER, JR., Judge
A retired judge of the Arizona Court of Appeals authorized and assigned to sit as a judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed August 15, 2012.
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