Petition for Review from the Superior Court in Yuma County. No. S1400CR200000472. The Honorable Christopher T. Whitten, Judge.
Jon R. Smith, Yuma County Attorney, Yuma, Counsel for Respondent.
Law Office of Harley Kurlander, Tucson, By Harley Kurlander, Counsel for Petitioner.
Judge Espinosa authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Brammer concurred.
[¶1] Petitioner Phillip Gregory Speers seeks review of the trial court's order summarily denying his petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P., alleging, inter alia, claims of ineffective assistance of counsel. We grant review and, for the following reasons, we vacate the court's order in part and remand the case for an evidentiary hearing on two of Speers's claims.
Relevant Procedural History
[¶2] This post-conviction proceeding relates to Speers's second jury trial in this cause for charges brought against him in 2000. He 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. The trial court sentenced him to prison terms totaling seventy-one years. We reversed Speers's convictions on appeal, concluding the court had erred in " precluding expert testimony regarding suggestive interview techniques and its influence on children's memories" and that the error " [could not] be deemed harmless." State v. Speers, 1 CA-CR 03-0812, ¶ ¶ 8-9, 34 (memorandum decision filed Feb. 24, 2005).
[¶3] After the case was remanded in 2005, Speers waived his right to counsel and began representing himself, with the assistance of advisory counsel Kristi Riggins. On the seventh day of trial, the court granted Speers's request to appoint Riggins to represent him for the remainder of the proceedings.
[¶4] The jury began deliberating on the fourteenth day of trial. During deliberations, the foreperson sent the trial court a note reporting that one of the jurors had asked an adult relative, who had been molested as a child, about the clarity of her
memories of those events and that he had related her responses to other jurors. After questioning each of the jurors, the court denied Riggins's request for a mistrial; excused juror eleven, who reportedly had made the statements about his relative; recalled an alternate juror to service; and directed the jury to begin deliberations anew.
[¶5] On the nineteenth day of trial, the jury found Speers guilty of molesting M.G. and M.A., as alleged in counts three and five of the indictment, and acquitted him of the other charges. Riggins filed a motion for new trial raising numerous issues, including a claim that juror misconduct had warranted a mistrial. The trial court denied the motion and sentenced Speers to two consecutive seventeen-year prison terms. Speers represented himself on appeal, and this court affirmed his convictions and sentences, rejecting, inter alia, his claim that he had been entitled to a mistrial based on juror eleven's misconduct. State v. Speers, 1 CA-CR 07-0796 (memorandum decision filed June 1, 2010).
[¶6] In his Rule 32 petition below, Speers alleged Riggins, in her role as trial counsel, had rendered ineffective assistance in the following ways: (1) abandoning a proposed jury instruction on contributing to the delinquency of a minor as a lesser-included offense of molestation; (2) interfering with his right to self-representation by failing to inform him, before he agreed to waive his right and be represented by her, of her intent to withdraw his request for the instruction; and (3) failing to develop a record of alleged misconduct by another juror, juror two, thereby precluding him from raising the issue on appeal. He also claimed, as a newly discovered material fact entitling him to a new trial, see Ariz. R. Crim. P. 32.1(e), that juror thirteen wrongly failed to disclose during voir dire that he had worked for the Yuma County Detention Center when Speers was incarcerated there during his first trial. With respect to this last claim, he argued, in the alternative, that previously assigned Rule 32 counsel had rendered ineffective assistance in failing to investigate juror thirteen's alleged misconduct in a timely manner.
[¶7] Speers supported his petition with his own affidavits and the affidavits of others, including juror two and C.W., an apparent friend who averred she had voluntarily assisted Speers during his trials with such activities as " typing, phone calls, [and] finding case law." He also submitted transcripts of recorded interviews with jurors eleven and thirteen, supported by an affidavit of current counsel regarding reasons affidavits from these jurors were unavailable. He additionally provided the affidavit of attorney Harold L. Higgins Jr., who averred he had forty years' experience in criminal law and opined that Riggins's performance " fell below community standards and was ineffective under prevailing case law" with respect to the following two issues: (1) her failure to request a lesser-included offense instruction that " was appropriate both factually and legally" and relevant to " the counts on which guilty verdicts were returned" and (2) her failure to present the trial court with extrinsic evidence, " by affidavit or other verifying documentation," of juror two's alleged jury misconduct, thereby " fail[ing] to preserve the issue for direct appellate review."
[¶8] The trial court summarily denied the petition, finding Speers failed to state a colorable claim for relief. In addition, the court found Speers's ineffective assistance claims precluded by his failure to raise them on ...