Opinion
No. 2 CA-CR 2014-0320-PR
10-15-2014
THE STATE OF ARIZONA, Respondent, v. THEODORE ROOSEVELT RUSHING, Petitioner.
COUNSEL William G. Montgomery, Maricopa County Attorney By Catherine Leisch, Deputy County Attorney, Phoenix Counsel for Respondent James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender, Phoenix Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Petition for Review from the Superior Court in Maricopa County
No. CR2007103188001DT
The Honorable Michael W. Kemp, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL William G. Montgomery, Maricopa County Attorney
By Catherine Leisch, Deputy County Attorney, Phoenix
Counsel for Respondent
James J. Haas, Maricopa County Public Defender
By Terry J. Reid, Deputy Public Defender, Phoenix
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which
Judge Howard and Judge Vásquez concurred.
KELLY, Presiding Judge:
¶1 Theodore Rushing petitions this court for review of the trial court's order summarily dismissing his petition for post-conviction relief, filed 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). Rushing has not met his burden of demonstrating such abuse here.
¶2 After two jury trials, Rushing was convicted of manslaughter, three counts of aggravated assault, and disorderly conduct. Rushing's convictions stemmed from an incident in January 2007 in which Rushing shot and killed C.B., the boyfriend of Rushing's ex-girlfriend, K.S., and shot and wounded K.S. Rushing claimed he had shot C.B. in self-defense. He was sentenced to consecutive prison terms totaling twenty-six years. We affirmed his convictions and sentences on appeal. State v. Rushing, No. 1 CA-CR 09-0601 (memorandum decision filed Nov. 3, 2011).
At Rushing's first trial, the jury found him guilty of three counts of aggravated assault and disorderly conduct but was unable to reach a verdict on the charge of first-degree murder. At a second trial, the jury acquitted him of first-degree murder but found him guilty of manslaughter.
¶3 Rushing sought post-conviction relief, arguing his trial counsel was ineffective for failing to object to the prosecutor's statements during closing argument, purportedly suggesting that Rushing had a duty to retreat before he could act in self-defense, and for failing to request a jury instruction pursuant to A.R.S. § 13-411 for the justified use of force for crime prevention. Rushing further argued his appellate counsel was ineffective for failing to raise the instruction and misconduct claims on appeal.
¶4 The trial court summarily dismissed Rushing's petition. It concluded the claims of ineffective assistance of trial counsel failed because the prosecutor "did not incorrectly state the law," the jury had been properly instructed regarding self-defense, and the crime-prevention instruction "was not appropriate under the facts of this case." It further noted Rushing had not made a colorable claim of ineffective assistance of appellate counsel because "[n]one of his complaints constitute fundamental error." This petition for review followed.
¶5 On review, Rushing repeats his claims. "To state a colorable claim of ineffective assistance of counsel," Rushing was required to "show both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced [him]." State v. Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d 63, 68 (2006), citing Strickland v. Washington, 466 U.S. 668, 687 (1984). And, to demonstrate resulting prejudice, Rushing had to show a reasonable probability that the outcome would have been different absent counsel's ineffectiveness. See State v. Nash, 143 Ariz. 392, 398, 694 P.2d 222, 228 (1985).
¶6 "Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim." Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68. Moreover, "[i]n addressing a claim of ineffective assistance of counsel, we must presume 'counsel's conduct falls within the wide range of reasonable professional assistance' that 'might be considered sound trial strategy.'" State v. Denz, 232 Ariz. 441, ¶ 7, 306 P.3d 98, 101 (App. 2013), quoting Strickland, 466 U.S. at 689. Thus, Rushing was required to show trial counsel's decisions "were not tactical in nature" and had no reasoned basis. Id.
¶7 Rushing first contends his trial counsel was ineffective for failing to object to the prosecutor's comments during closing argument that:
[Rushing] could have walked to his car. This isn't a situation where he was inside his house. Because if the defendant was inside his house, well, hey, you don't have to retreat anywhere; right? This is Arizona. Someone comes into your house, you don't have to retreat, doesn't matter what they're in there for. You think they're in your house, then boom, shoot them dead.
You know what? He was in a parking lot. . . . [H]e could have walked to his car.
¶8 The prosecutor's comments, read in isolation, are implicitly inconsistent with established Arizona law that there is no duty to retreat before one may act in self-defense. State v. Jessen, 130 Ariz. 1, 8, 633 P.2d 410, 417 (1981). Read in context, however, it is clear the prosecutor's argument was that the jury could find Rushing's conduct unreasonable, not that he had a duty to retreat, and that his failure to do so required the jury to reject his claim of self-defense. Thus, Rushing has not demonstrated prejudice resulting from counsel's decision to not object. See Nash, 143 Ariz. at 398, 694 P.2d at 228.
¶9 Moreover, Rushing has not demonstrated that trial counsel fell below prevailing professional norms by declining to object. That decision plainly is tactical—counsel may have decided not to draw attention to the prosecutor's statement by objecting. Thus, counsel's decision cannot support a claim of ineffective assistance. See Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101.
Rushing points out that trial counsel later referred to the prosecutor's argument. Although the reason for counsel's reference is not entirely clear, we disagree with Rushing that counsel's reference could reasonably be read as "endors[ing]" the prosecutor's earlier statements. Nor does counsel's isolated comment warrant the conclusion that his decision to not object was anything but tactical.
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¶10 Rushing next argues trial counsel was ineffective because counsel failed to request a jury instruction on the justification defense of crime prevention pursuant to § 13-411, instead requesting only a self-defense instruction pursuant to § 13-405. Section 13-405 provides that a person is justified in the use of deadly physical force "[w]hen and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force." Section 13-411(A) provides: "A person is justified in . . . using . . . deadly physical force against another if and to the extent the person reasonably believes that . . . deadly physical force is immediately necessary to prevent the other's commission of" certain enumerated crimes, including first- and second-degree murder or aggravated assault causing serious physical injury.
¶11 The relevant distinction between the two defenses, according to Rushing, is that § 13-411 expressly provides that Rushing had no duty to retreat and that he would have been "presumed to be acting reasonably for the purposes of this section if the person is acting to prevent what the person reasonably believes is the imminent or actual commission of any of the [enumerated] offenses." A.R.S. § 13-411(C). He reasons he was prejudiced by counsel's failure to request the instruction because it would have rebutted the prosecutor's "erroneous[]" argument that he had a duty to retreat and permit the jury to presume he had acted reasonably.
¶12 Rushing correctly observes that he would have been entitled to the instruction had he requested it. "'[A] defendant is entitled to a justification instruction if it is supported by the slightest evidence.'" State v. Ruggiero, 211 Ariz. 262, ¶ 10, 120 P.3d 690, 692 (App. 2005), quoting State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997). But the mere fact he was entitled to the instruction if requested does not mean counsel was ineffective in failing to make the request. Counsel may have opted to forgo the instruction because he believed the self-defense instruction sufficient and did not wish to confuse the jury with an alternative instruction less obviously applicable to his version of the facts. See Denz, 232 Ariz. 441, ¶ 7, 306 P.3d at 101.
¶13 And, in any event, Rushing has not demonstrated resulting prejudice. See Nash, 143 Ariz. at 398, 694 P.2d at 228. Although the self-defense statute has no presumption similar to that in § 13-411(C), see § 13-405, the presumption is rebuttable and therefore disappears when the state presents contradictory evidence. See State v. Martinez, 202 Ariz. 507, ¶¶ 18-19, 47 P.3d 1145, 1148-49 (App. 2002). The state plainly did so here, including presenting evidence that Rushing threatened witnesses who had attempted to provide medical assistance to C.B. after Rushing shot him. And, as we have noted, the prosecutor's argument concerning Rushing's failure to retreat properly emphasized the reasonableness of his conduct and did not expressly misstate the law. Finally, irrespective of which justification instruction was given, for the jury to have concluded Rushing's shooting C.B. was justified, it would have had to conclude he acted reasonably in the face of a perceived threat to his person. See §§ 13-405; 13-411. The differences between the two justifications are largely immaterial in this case.
¶14 Rushing further claims appellate counsel was ineffective for failing to raise on appeal the prosecutor's purported misstatements of the law and the trial court's failure to instruct the jury, sua sponte, on § 13-411. Rushing, however, cannot demonstrate that appellate counsel's decision to forgo these claims fell below prevailing professional norms or that he was prejudiced thereby. See Bennett, 213 Ariz. 562, ¶ 21, 146 P.3d at 68. Because the arguments were not raised below, he had forfeited all but fundamental, prejudicial error on appellate review. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). As we have explained, however, no prejudice resulted from any error. Thus, there was no basis for counsel to have raised the arguments on appeal.
¶15 For the reasons stated, although we grant review, we deny relief.