Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20114044001 The Honorable Richard S. Fields, Judge
Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Respondent
Law Offices of Erin E. Duffy, P.L.L.C, Tucson By Erin E. Duffy Counsel for Petitioner
Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Presiding Judge Miller concurred.
¶1 Petitioner Ray Taylor seeks review of the trial court's partial denial, after an evidentiary hearing, of his amended petition for post-conviction relief, filed pursuant to Rule 32, Ariz. R. Crim. P. For the following reasons, we grant review but deny relief.
¶2 After a jury trial, Taylor was convicted of possession of a deadly weapon by a prohibited possessor and unlawful discharge of a firearm within city limits, both repetitive offenses committed while Taylor was on probation. The trial court sentenced him to enhanced, concurrent prison terms, the longer of which is ten years. We affirmed his convictions and sentences on appeal. State v. Taylor, No. 2 CA-CR 2012-0396 (memorandum decision filed July 16, 2013). In that decision, we presented the following summary of trial evidence:
[A] witness identified Taylor to Tucson police officers as the person he had seen about a half hour earlier firing a shotgun at a car that was speeding away from the area after two men who had been arguing with Taylor had jumped into the car. Officers found spent shotgun shells nearby and found an additional spent shotgun shell and a twelve-gauge shotgun in Taylor's apartment.
Id. ¶ 3.
¶3 Taylor then filed a notice of and petition for post- conviction relief alleging trial counsel had been ineffective in failing "to know" of and pursue a defense of justification by necessity, pursuant to A.R.S. § 13-417(A). At an evidentiary hearing, Taylor's Rule 32 counsel asked his trial attorney, "[W]as it only after I sent you some case law that you became aware that necessity is a valid defense for [a] prohibited possessor?" After trial counsel answered affirmatively, the trial court asked Rule 32 counsel what case law she had provided, and she referred to a memorandum decision filed by this court in October 2013. Trial counsel agreed with Taylor that, had he believed a necessity defense was available in Taylor's case, he would have "very strongly looked at [tha]t, " instead of challenging Taylor's identification as the man a witness saw firing a gun at a fleeing vehicle. Evidence was presented that the prosecutor had informed trial counsel, before trial, that the eyewitness later said Taylor had been "shot at first by the occupants of the car [and] then went into his house, got his gun, and fired back."
¶4 At the close of the hearing, the trial court denied relief, stating the following reasons for its ruling:
[Trial counsel] did not consider necessity defense, and I think there were good reasons he didn't consider it, because, frankly, if you believed that [the eyewitness] was correct and that he had to go back into the residence to retrieve the ...