Opinion
No. 2 CA-CR 2017-0116-PR
03-11-2020
THE STATE OF ARIZONA, Respondent, v. PHILLIP GREGORY SPEERS, Petitioner.
COUNSEL Jon R. Smith, Yuma County Attorney By Joshua K. Davis-Salsbury, Deputy County Attorney, Yuma Counsel for Respondent The Law Office of Harley Kurlander, Tucson By Harley Kurlander 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Yuma County
No. S1400CR200000472
The Honorable Christopher T. Whitten, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Jon R. Smith, Yuma County Attorney
By Joshua K. Davis-Salsbury, Deputy County Attorney, Yuma
Counsel for Respondent The Law Office of Harley Kurlander, Tucson
By Harley Kurlander
Counsel for Petitioner
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Petitioner Phillip Speers seeks review of the trial court's order dismissing his petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. "We will not disturb a trial court's ruling on a petition for post-conviction relief absent a clear abuse of discretion." State v. Swoopes, 216 Ariz. 390, ¶ 4 (App. 2007). Speers has not sustained his burden of establishing such abuse here.
Effective January 1, 2020, our supreme court amended the post-conviction relief rules. See Ariz. Sup. Ct. Order R-19-0012 (Aug. 29, 2019). The amended rules apply to all cases pending on the effective date unless a court determines that "applying the rule or amendment would be infeasible or work an injustice." Id. Because it is feasible and does no injustice, we apply and cite to the current version of the rule.
¶2 Speers 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. His convictions were reversed on appeal, based on the trial court having erred in "precluding expert testimony regarding suggestive interview techniques and its influence on children's memories." State v. Speers, 238 Ariz. 423, ¶ 2 (App. 2015) (quoting State v. Speers, No. 1 CA-CR 03-0812, ¶¶ 8-9 (Ariz. App. Feb. 24, 2005) (mem. decision)).
¶3 After a second trial, Speers was found guilty on two counts of molestation relating to victims M.G. and M.A., but was acquitted of the remaining charges. The trial court sentenced him to consecutive seventeen-year prison terms. His convictions and sentences were affirmed on appeal. State v. Speers, No. 1 CA-CR 07-0796 (Ariz. App. June 1, 2010) (mem. decision).
¶4 Speers thereafter sought post-conviction relief, raising various claims of ineffective assistance of trial counsel including claims based on counsel's abandonment of a lesser-included-offense instruction and counsel's failure to "develop" a claim of juror misconduct. This court concluded Speers had presented a colorable claim that his trial counsel had "performed deficiently in abandoning his request for a jury instruction on the lesser-included offense of contributing to the delinquency of a minor" and in regard to the claim of juror misconduct. Speers, 238 Ariz. 423, ¶¶ 24, 29. We remanded the matter for an evidentiary hearing. Id. ¶ 34.
¶5 After the hearing, the trial court determined that counsel had not withdrawn or abandoned the lesser-included jury instruction, but that "the Court specifically considered it, discussed it with counsel and refused to give it." Therefore, the court concluded, the issue was "preserved for appeal" and Speers "could have, and should have," raised it on appeal. Because he failed to do so, the court concluded, the claim was precluded.
¶6 Speers's claim of juror misconduct centered on a juror's failure to disclose that her grandfather had touched her breast as a child and her comments about that experience during deliberations. As to that claim, the trial court concluded the juror had not willfully failed to disclose information and Speers had not shown prejudice based on the juror's statements in deliberations.
¶7 Speers sought review in this court, and we remanded the matter to the trial court, concluding it had improperly rejected Speers's claim of ineffective assistance in regard to the jury instruction as precluded. On remand the parties produced no additional evidence, but the court received memoranda from the parties, heard argument on the matter, and again denied relief.
¶8 The trial court concluded counsel had not made an "unreasonable mistake" in failing to argue for the lesser-included-offense instruction. It also concluded that Speers had not been prejudiced by counsel's performance in view of the evidence of his guilt and the "logical gymnastics" that would have been required for the jurors to have found him guilty of only the lesser offense.
¶9 On review of the denial of post-conviction relief after an evidentiary hearing, we "view the facts in the light most favorable to sustaining the lower court's ruling, and we must resolve all reasonable inferences against the defendant." State v. Sasak, 178 Ariz. 182, 186 (App. 1993). When "the trial court's ruling is based on substantial evidence, this court will affirm." Id.
¶10 Speers bore the burden of proof at the evidentiary hearing, see Ariz. R. Crim. P. 32.13(c), and was required to establish both that counsel's performance was deficient and that he was thereby prejudiced, see Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Nash, 143 Ariz. 392, 397 (1985). To establish prejudice, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A 'reasonable probability' is less than 'more likely than not' but more than a mere possibility." State v. Lee, 142 Ariz. 210, 214 (1984). It "is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
¶11 In making this assessment, a court "must consider the totality of the evidence" before the jury, as well as how the alleged error may have affected the jury's findings. Id. at 695-96 (noting "a verdict . . . weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support"); see also Berghuis v. Thompkins, 560 U.S. 370, 389-91 (2010) (finding, on de novo review, "not reasonably likely" counsel's failure to request limiting instruction "would have made any difference in light of all the other evidence of guilt"). Further, the assessment "must exclude the possibility of arbitrariness, whimsy, caprice, 'nullification,' and the like." Strickland, 466 U.S. at 695.
Some state courts have held that a jury's guilty verdict on the greater charge precludes a showing of prejudice for failure to request a lesser-included-offense instruction. See, e.g., Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006) (holding "claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied"). But the Ninth Circuit has recently held similar analysis by the Washington Supreme Court "was an unreasonable application of clearly established federal law" and Strickland. Crace v. Herzog, 798 F.3d 840, 843 (9th Cir. 2015). We need not resolve in this case whether a per se rule is appropriate under Arizona law because, as detailed below, we conclude Speers was not prejudiced in any event.
¶12 In the affidavit submitted with his petition for post-conviction relief Speers stated that he "had intended to testify" and to "expand[] on [his] own admitted inappropriate conduct with the children." He also stated his trial counsel had told him she agreed with the trial court and "did not think that Contributing to the Delinquency of a Minor was a lesser as to the molest charges." Likewise, Carol Wray, who had assisted Speers while he represented himself and "acted as [a] conduit for him" and his counsel, averred that counsel had concluded "contributing is not a lesser offense of molestation." In her own affidavit, trial counsel explained that she had determined "it was a lesser-included offense to child molestation, but not if the defense is that the defendant never inappropriately touched the victim." Thus, she believed she could not "make an ethical, good faith argument requesting such an instruction." Accepting these facts as true, see State v. Jackson, 209 Ariz. 13, ¶ 2 (App. 2004), we concluded in our previous decision that Speers had stated a colorable claim of ineffective assistance because counsel had acted on "incorrect legal analysis" and had not made a strategic decision to abandon the request for the instruction, Speers, 238 Ariz. 423, ¶¶ 16, 18, 24.
¶13 At the evidentiary hearing, trial counsel testified that she had researched whether contributing to the delinquency of a minor was a lesser-included offense of child molestation and whether an instruction on that point was appropriate. She found that "under certain circumstances" contributing could be a lesser-included offense of molestation, but had abandoned the request for an instruction to that effect. Based on her understanding, Speers's admitted conduct—having the children sit on his lap, hugging them, and patting their bottoms—lacked a "nexus" or "an element of sexual interest," which she believed would be required to obtain an instruction on contributing as a lesser-included offense. She therefore concluded she had no "good faith basis to ask for it." She also outlined the planned defense in Speers's case, "that the various accusations were untrue" and "a product of primarily repeated leading questioning."
¶14 Speers also testified at the evidentiary hearing, and he explained that he had spoken to counsel about the lesser-included-offense instruction. He testified he "had admitted to having the girls sit on [his] lap . . . to touching them on the bottom and kissing them on the cheek." When discussing the facts of what had happened at the hearing, the trial court asked if Speers was "[j]ust going to summarize what was happening at the trial," and Speers explained he was presenting "a different argument and approach with regard to the use of lesser includeds." He did not present additional evidence of admitted or other conduct with the children.
¶15 In its ruling denying relief on this claim, the trial court found "[t]he only circumstantial evidence which would have supported the conclusion that the Defendant was not guilty of having molest[ed] M.G. and M.A., but that he had contributed to their delinquency by having them sit on his lap was wafer thin." Thus, it concluded, "[a]lthough technically possible . . . such a conclusion would be very improbable." This was particularly so in light of the "strong evidence supporting his conviction." As described above, the court therefore determined that even if counsel's performance had been deficient, Speers had not established prejudice. We cannot say the court abused its discretion in so concluding.
¶16 Whether Speers would be entitled to a lesser-included-offense instruction on the facts as developed after the evidentiary hearing is a close question. As we detailed in our previous decision, although a defendant may be entitled to such an instruction even when presenting an all-or-nothing defense, "[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.'" Speers, 238 Ariz. 423, ¶ 20 (alterations in Wall) (quoting State v. Wall, 212 Ariz. 1, ¶¶ 29-30 (2006)). An instruction should be given only if the jury can "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." Id. (quoting Wall, 212 Ariz. 1, ¶ 18). Thus, although it is clear that contributing to the delinquency of a minor may be a lesser-included offense of child molestation, see id. ¶ 21, a defendant must still be entitled to the instruction based on the facts of the case, see Wall, 212 Ariz. 1, ¶ 18; see also State v. Celaya, 135 Ariz. 248, 252-53 (1983).
¶17 We need not determine, however, whether Speers was entitled to the instruction, because we conclude that even had it been given, on the record before us, there is not a "reasonable probability" that the instruction would have changed the verdict. Strickland, 466 U.S. at 694; State v. Salazar, 146 Ariz. 540, 541 (1985) (if defendant fails to make sufficient showing on either element of Strickland test, court need not determine whether other element satisfied). Both victims testified that Speers had them sit on his lap, then reached through the pocket of their dress, which opened to the inside, put his hand inside their underwear, and touched their genitals. In contrast, the testimony that Speers had admitted other conduct, including "kissing some of the students," "patting some of the students on the bottom," and "hugging the students," centered on whether such behavior was "appropriate or inappropriate conduct by a teacher." But on the record before us, no evidence demonstrated that the type of conduct Speers admitted to would "debase or injure the morals, health or welfare of a child." A.R.S. § 13-3612(1). Thus, the jury could only have found Speers guilty of contributing to the delinquency of the victims by accepting their testimony, which also necessarily established his guilt as to the molestation charges. See A.R.S. §§ 13-1410(A), 13-1401(A)(3)(a) (defining molestation as sexual contact with a minor, which is "any direct or indirect touching, fondling or manipulating of any part of the genitals . . . [or] anus"). And Speers presented nothing at the Rule 32 evidentiary hearing to add to the evidence presented at trial on this point.
¶18 Speers also claims he received ineffective assistance of counsel in regard to the juror who failed to disclose during voir dire that she had been molested as a child. He asserts this juror, Juror Two, committed misconduct by failing to disclose the molestation and by discussing her personal experience during deliberations. Therefore, he contends trial counsel was ineffective in failing to contact and interview her in support of a motion for new trial.
¶19 The prospective jurors for the trial received questionnaires before the in-court voir dire. One question indicated that the trial would involve allegations of sexual conduct with a child and asked if the prospective juror could "fairly and impartially listen to and consider the evidence presented during the trial and follow all of the instructions given to you by the judge and render your verdict solely upon the evidence and those instructions." Juror Two answered yes, but indicated that it "will be hard." During voir dire, when asked about being or knowing a victim of crime, Juror Two disclosed that she had been the victim of domestic violence, but said nothing about molestation. Speers, who was at that time self-represented, did not ask Juror Two about her response on the questionnaire.
¶20 Later, during jury deliberations, the trial court received a note from a juror stating that a juror, Juror Eleven, had told the jury that he had asked his niece, who had been molested, "if she remembered all the facts" and "told the other jurors the response." The court questioned each of the jurors as to whether they could disregard the information and consider only that presented in court.
¶21 During that process, the parties learned that Juror Two had informed the other jurors "she was familiar with similar situations." Trial counsel expressed concern about jurors sharing such "inflammatory" personal information during deliberations and asked for a mistrial. The court excused the juror who had made the statement about his niece and instructed the jurors to "disregard all past deliberations and begin . . . deliberations all over again."
¶22 In a motion for new trial, after the jury had entered its verdicts, Speers's trial counsel focused on the conduct of Juror Eleven, but mentioned that Juror Two had not been further questioned on what she had said to the other jurors. In a footnote counsel also pointed out that Juror Two had "never revealed her prior molestation during voir dire despite being asked directly about previous victimization." The trial court denied the motion.
¶23 Speers filed an affidavit from Juror Two in support of his petition for post-conviction relief. In her affidavit, Juror Two explained that she had been "the victim of what [she] considered to be child molestation." She averred her grandfather had touched her "breast area" when she was six, but the touching was not reported to law enforcement. She stated that she had not disclosed the abuse during voir dire because her grandfather had never been criminally charged and she had therefore believed the event was not a "crime" as the voir dire questioning had specified. Speers also supported his claim of ineffective assistance with an affidavit from a criminal defense attorney who stated that he believed Speers's counsel's performance fell below prevailing professional norms because she failed to "conduct a post verdict investigation" regarding Juror Two's "possible misconduct."
¶24 At the evidentiary hearing, Juror Two testified in a manner generally consistent with her affidavit. She also agreed that despite her past experience she had told the trial court that she "could be fair and impartial." Trial counsel testified at the hearing that she would not have had "the resources" to interview or contact the jurors. She also testified that because the motion for new trial had to be filed within ten days of the verdict and because obtaining an investigator from the public defender's office was onerous, there were "time constraints" as to what could be included.
¶25 In its ruling, the trial court correctly noted that Speers had represented himself at the time of voir dire and had failed to question Juror Two despite her having answered that it would be hard for her to be fair and impartial in a case involving sexual conduct with a child on her juror questionnaire and had not moved to strike her for cause. See Ariz. R. Crim. P. 18.4(b); State v. Rubio, 219 Ariz. 177, ¶ 8 (App. 2008). It also concluded Speers had not established he was prejudiced because the juror had not committed misconduct by sharing her personal experience with the other jurors. See State v. Leonard, 151 Ariz. 1 (App. 1986).
¶26 We agree with the trial court that for these reasons Speers has not established he was prejudiced by any deficient performance. Additionally, as detailed above, Juror Two agreed during voir dire and reaffirmed at the evidentiary hearing that she had believed she could be fair and consider only the evidence presented. Therefore, even had her childhood experience been disclosed, the court would not have been required to remove her for cause, much less grant a motion for new trial based on later-discovered personal history. See State v. Clabourne, 142 Ariz. 335, 344 (1984).
¶27 For these reasons, although we grant the petition for review, we deny relief.