Opinion
2 CA-CR 2023-0183-PR
07-12-2024
The State of Arizona, Respondent, v. James Leroy Mason Jr., Petitioner.
James Fullin, Pima County Legal Defender By Alex D. Heveri, Assistant Legal Defender, Tucson Counsel for Petitioner
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Petition for Review from the Superior Court in Pima County No. CR20154903001 The Honorable Richard E. Gordon, Judge REVIEW GRANTED; RELIEF DENIED
James Fullin, Pima County Legal Defender
By Alex D. Heveri, Assistant Legal Defender, Tucson
Counsel for Petitioner
Presiding Judge Gard authored the decision of the Court, in which Chief Judge Staring and Judge Eckerstrom concurred.
MEMORANDUM DECISION
GARD, PRESIDING JUDGE:
¶1 Petitioner James Mason Jr. seeks review of the trial court's ruling denying his petition for post-conviction relief filed under Rule 32, Ariz. R. Crim. P. We will not disturb that decision unless Mason shows the court abused its discretion. See State v. Pandeli, 242 Ariz. 175, ¶ 4 (2017); State v. Reed, 252 Ariz. 236, ¶ 6 (App. 2021). Mason has not carried his burden here. Accordingly, although we grant review, we deny relief.
Factual and Procedural History
¶2 The state charged Mason with first-degree murder, accusing him of killing his seventy-two-year-old stepfather, A.N., in November 2015. A.N. had died from multiple sharp-force injuries to the chest. Mason admitted at trial that he had stabbed A.N. but maintained he acted in self-defense. A jury found Mason not guilty of first-degree murder but guilty of the lesser-included offense of second-degree murder. The trial court thereafter sentenced Mason to the slightly aggravated term of eighteen years' imprisonment. This court affirmed Mason's conviction and sentence on direct appeal. State v. Mason, No. 2 CA-CR 2018-0202 (Ariz. App. Oct. 17, 2019) (mem. decision).
¶3 Mason filed a notice of post-conviction relief, and the trial court appointed counsel. Mason thereafter filed a petition for post-conviction relief, arguing primarily that he had received ineffective assistance of counsel at trial. He specifically faulted trial counsel for failing to request jury instructions: 1) on the crime-prevention justification, see A.R.S. § 13-411; 2) directing the jury to view the self-defense justification from the perspective of a reasonable victim of A.N.'s acts of domestic violence, see A.R.S. § 13-415; and 3) requiring the jury to evaluate Mason's testimony the same as they would any other witness. Mason also argued that counsel should have called Mason's sister to testify regarding A.N.'s history of domestic violence.
¶4 In addition to his ineffective-assistance claims, Mason contended that he had discovered new evidence supporting his self-defense theory, in the form of previously overlooked firearms located in proximity to A.N. at the time Mason stabbed him. See Ariz. R. Crim. P. 32.1(e). In the alternative to the newly discovered evidence claim, Mason alleged that counsel had rendered ineffective assistance by failing to discover the firearms and offer them at trial. Mason thereafter supplemented his petition to: 1) expand on his crime-prevention ineffectiveness claim, 2) allege that counsel failed to request a jury instruction defining "unlawful physical force" for self-defense purposes, and 3) contend that counsel failed to present expert testimony regarding characteristics of domestic-violence victims.
¶5 The trial court ordered an evidentiary hearing on all claims, specifically identifying Mason's newly discovered evidence allegation and his ineffectiveness claim relating to the crime-prevention justification as the "most colorable" issues. At the subsequent four-day hearing, Mason presented a new ineffective-assistance claim that he had not previously briefed, challenging counsel's failure to rehabilitate witness K.M. after the state impeached him with his police interview. Following the hearing, the court denied relief. This petition for review followed.
A defendant must generally include a post-conviction claim in his or her petition, thereby giving the state the opportunity to respond to it and the trial court the opportunity to assess whether it is colorable. See Ariz. R. Crim. P. 32.7(b) (defendant's petition must identify grounds for relief); 32.9(a) (state must respond to petition and may present evidence contradicting defendant's allegations); 32.11(a), (b) (court must set hearing on claims not summarily dismissed); State v. Amaral, 239 Ariz. 217, ¶ 12 (2017) (defendant entitled to evidentiary hearing only on colorable claims). Although Mason did not follow this procedure here, the state did not object to the late-raised claim and the trial court considered and rejected it on the merits. Because the court resolved the claim on the merits, we review its ruling. However, our decision should not be understood to sanction the practice of permitting a mid-hearing oral amendment to a post-conviction petition without a threshold showing of good cause for the amendment and without the state receiving notice and the opportunity to respond. See Ariz. R. Crim. P. 32.9(d) (petition may be amended only on showing of good cause); State v. Macias, 249 Ariz. 335, ¶ 8 (App. 2020) ("To be eligible for post-conviction relief, a defendant must strictly comply with the postconviction rules.").
Discussion
¶6 Mason contends the trial court abused its discretion by denying relief on his claims that counsel was ineffective for failing to: 1) request jury instructions on the crime-prevention justification, see § 13-411, or on a domestic-violence victim's state of mind, see § 13-415; 2) consult with and present testimony from a domestic-violence expert; or 3) rehabilitate K.M. He further argues the court erred by declining to analyze the cumulative prejudicial impact of counsel's claimed errors.
Mason does not seek review of the trial court's rulings on his newly discovered evidence claim involving the overlooked firearms, his related ineffective-assistance claim, his claim that counsel should have requested a jury instruction defining "unlawful physical force" for self-defense purposes, or his claim that counsel should have called his sister as a witness. Mason has therefore abandoned any challenge to the court's rulings on these issues. See Ariz. R. Crim. P. 32.16(c)(4) ("A party's failure to raise any issue that could be raised in the petition for review . . . constitutes a waiver of appellate review of that issue."). In addition, Mason includes in his list of issues presented his claim that counsel was ineffective for failing to request an instruction directing the jury to "evaluate Mason's testimony the same as all other witnesses." But because he presents no argument on that claim, it is waived and we do not consider it. See Ariz. R. Crim. P. 32.16(c)(2)(D) (petition for review must include "reasons why the appellate court should grant the petition"); State v. Stefanovich, 232 Ariz. 154, ¶ 16 (App. 2013) (concluding that defendant "has waived [his] claim on review because he cites no relevant authority and does not develop the argument in any meaningful way").
¶7 As previously discussed, we review a trial court's order denying post-conviction relief for an abuse of discretion, but we review any associated legal questions de novo. Pandeli, 242 Ariz. 175, ¶ 4. A court abuses its discretion if it "makes an error of law or fails to adequately investigate the facts necessary to support its decision." Id. The court here rejected Mason's claims after an evidentiary hearing; we therefore review the court's factual findings for clear error and view the hearing evidence in the light most favorable to sustaining the ruling. See State v. Traverso, 256 Ariz. 247, ¶ 8 (App. 2023); State v. Sasak, 178 Ariz. 182, 186 (App. 1993). Mason carried the burden below of proving his factual allegations by a preponderance of the evidence, see Ariz. R. Crim. P. 32.13(c), and he carries the burden on review of proving the court abused its discretion by denying relief, Reed, 252 Ariz. 236, ¶ 6.
¶8 To prove counsel ineffective under the Sixth Amendment, Mason must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficient performance, Mason must establish that counsel's conduct fell below an objective standard of reasonableness as measured by prevailing professional norms. Id. at 688; State v. Bigger, 251 Ariz. 402, ¶ 8 (2021). We "indulge a strong presumption" that counsel acted reasonably under the circumstances and that the challenged act or omission resulted from sound trial strategy. Strickland, 466 U.S. at 689; see also Bigger, 251 Ariz. 402, ¶ 10. We view counsel's decision-making deferentially, and we make every effort to avoid "the distorting effects of hindsight" in examining counsel's performance. Bigger, 251 Ariz. 402, ¶ 11 (quoting Strickland, 466 U.S. at 689). "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable ...." Strickland, 466 U.S. at 690.
¶9 To show prejudice, Mason must establish a reasonable probability that, absent counsel's errors, the proceeding's outcome would have been different. See id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011).
To the extent Mason contends the trial court erred by acknowledging that a different verdict was "conceivable" and still finding a lack of prejudice, we disagree because, as discussed above, Strickland requires more than a "conceivable" different result. Harrington, 562 U.S. at 112.
I. Jury instructions A. Relevant trial evidence
¶10 A.N. was killed in his home, where Mason also lived. There, Mason acted as a caretaker for his mother and A.N. Mason's minor nephew, K.M., was visiting when the stabbing occurred. K.M. recalled that A.N. had been consuming alcohol and arguing with Mason in the hours before his death. At one point, A.N. threatened to force Mason to move out of the home. Mason spoke privately with K.M., telling him that A.N. had pointed a gun at his head while intoxicated twenty years earlier, that he could not "take it anymore," that he did not expect K.M. to choose sides, and that K.M. should care for his dogs if A.N. in fact forced him to move out.
¶11 Mason directed K.M. to take Mason's mother and the dogs into her room to get away from the arguing. From that room, K.M. heard noises that sounded like items falling and heard Mason say, "[W]hat are you gonna do now, put a gun up to me[?] You don't have a gun. It's in your room." Shortly thereafter, Mason entered the room and said to K.M., "Come look at what he made me do to him." K.M. accompanied Mason to the living room, where he saw A.N. with a knife protruding from his abdomen. Mason handed K.M. a telephone, instructed him to call police, asked him again to care for the dogs, and threw A.N.'s walker in anger.
¶12 Mason also testified at trial. He maintained that A.N. kept firearms near him at all times, that A.N. had previously discharged a gun in the house, and that A.N. had pointed a firearm at Mason's head during an argument many years earlier. He explained that A.N. was a violent and abusive alcoholic, that A.N. was intoxicated at the time of the stabbing, and that he and A.N. had engaged in a series of confrontations in the hours before A.N. was killed. Mason testified that A.N. had threatened to shoot and kill him and had remarked that he "should have shot [Mason] the first time." After making these comments, A.N. reached for something near the recliner in which he was sitting, in an area where he had previously kept his guns. Mason testified he had believed A.N. was reaching for a firearm, so he picked up a knife that was lying nearby and stabbed A.N. in self-defense.
¶13 The trial court instructed the jurors on the self-defense justification. It advised them that one is justified in using or threatening physical force if "[a] reasonable person in the situation" would have believed such force "was immediately necessary to protect against another's use or apparent attempted or threatened use of unlawful physical force," and the person used or threatened no more force "than would have appeared necessary to a reasonable person in the situation." The instruction also provided that a person may use deadly physical force only "to protect against another's use or apparent attempted or threatened use of deadly physical force" and that the use of physical or deadly physical force is justified if "a reasonable person in the situation would have reasonably believed that immediate physical danger appeared to be present," even if actual danger were not present. And the instruction provided that the state carried the burden of proving beyond a reasonable doubt that a defendant's acts were not justified. See A.R.S. § 13-205(A).
¶14 In closing, defense counsel emphasized A.N.'s history of violent and unpredictable behavior and his weapons ownership. She further highlighted the instruction requiring jurors to view Mason's self-defense claim from the perspective of a "reasonable person in a similar situation" to Mason, and proposed that "a reasonable person with the experiences that [Mason] had with" A.N. would have believed A.N. was reaching for a gun. The jurors found Mason guilty of second-degree murder.
B. Crime prevention
¶15 At the post-conviction hearing, trial counsel admitted she should have presented a crime-prevention justification defense. And Mason's standard-of-care expert opined that counsel's failure to pursue that defense fell below prevailing professional norms.
¶16 The trial court denied relief. In so doing, the court assumed deficient performance, albeit "with significant hesitation" given counsel's selection of an "uncomplicated" self-defense theory. The court, however, found that Mason had failed to show prejudice. The court recognized that the crime-prevention justification is "more permissive than justification based on self-defense." Nonetheless, the court determined that-under this case's facts-Mason had not shown a reasonable probability that a crime-prevention justification defense would have affected the outcome.
¶17 The trial court reasoned that a crime-prevention theory proposing that Mason had acted to prevent A.N. from committing murder or manslaughter would not have differed significantly from the self-defense theory counsel pursued. The court perceived a closer question as to a crime-prevention theory centered on preventing aggravated assault, opining that it was "conceivable" that the verdict could have differed had counsel proposed that Mason acted to prevent A.N. from using a deadly weapon to place him in reasonable apprehension of imminent physical injury. See A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2).
The trial court noted the "clumsy nature of the inquiry" when applying Strickland's prejudice prong to the omission of a crime-prevention instruction predicated on preventing aggravated assault. Citing this comment, Mason contends the court "erred as a matter of fact and law in holding that a crime-prevention defense is clumsy in nature." Mason, however, overstates the comment's significance. The court did not hold that a crime-prevention defense is inherently a clumsy one, but merely remarked on the difficulties associated with applying Strickland's reasonable-probability standard in the present, multi-layered context. The court correctly applied Strickland, and its reference to a "clumsy" inquiry was editorial at best.
¶18 Nonetheless, the trial court concluded that such a result was not reasonably probable in light of the jury's rejection of self-defense, reasoning, "If it wasn't reasonable for Mason to employ deadly force against the victim in self-defense, it is unlikely that the jury would have sanctioned its use to defend against an aggravated assault, given that both theories require objective reasonableness." The court concluded that, even applying the favorable presumption that accompanies the crime-prevention justification, it could not find prejudice without engaging in "sheer speculation."
¶19 As the trial court correctly recognized, the crime-prevention and self-defense justifications encompass different conduct. Under crime prevention, a person is "justified in threatening or using both physical force and deadly physical force" to the extent that person reasonably believes such force "is immediately necessary to prevent the other's commission" of certain enumerated offenses, including, as relevant here, manslaughter, first and second-degree murder, and aggravated assault. § 13-411(A). There is no duty to retreat, and a "person is 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 offenses listed in" the statute. § 13-411(B), (C).
¶20 Conversely, under the self-defense justification, "a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force." A.R.S. § 13-404(A); see A.R.S. § 13-405 (person justified in using deadly physical force in self-defense "[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"); State v. King, 225 Ariz. 87, ¶ 15 (2010) ("The 'slightest evidence' [warranting a justification instruction] is a low standard that has been defined in the self-defense context as 'a hostile demonstration, which may be reasonably regarded as placing the accused apparently in imminent danger of losing her life or sustaining great bodily harm.'" (quoting State v. Lujan, 136 Ariz. 102, 104 (1983))).
¶21 The crime-prevention justification therefore differs from self-defense in that the former 1) carries a presumption of reasonableness, and 2) does not limit a defendant's use of force "to those situations in which it is reasonably and immediately necessary to repel force," instead justifying the use of force, including deadly force, to prevent certain enumerated crimes that do not necessarily involve physical injury. State v. Almeida, 238 Ariz. 77, ¶¶ 18-20 (App. 2015). Because of these two distinctions, we have "long rejected the argument that a self-defense instruction adequately covers a crime-prevention instruction." State v. Wilson, 253 Ariz. 191, ¶ 22 (App. 2022).
¶22 But despite the crime-prevention justification's presumption, a defendant's "subjective belief that an aggravated assault was about to occur" does not give him "a priori immunity from prosecution." Korzep v. Superior Court, 172 Ariz. 534, 540 (App. 1991). It instead only creates an initial presumption of reasonableness, which the state may rebut "under A.R.S. § 13-411(A) 'if and to the extent' [the] chosen degree of force is unreasonable to prevent the crime in question." Id. Thus, "the reasonableness of the conduct used to prevent crime . . . must be measured not exclusively by a defendant's self-assertion but also by objective standards of proportionality to the criminal . . . threat presented." Id.
In Korzep, the court interpreted subsections (A) and (C) together to reach this conclusion. 172 Ariz. at 540. The legislature subsequently amended subsection (C) to add the phrase "what the person reasonably believes." 2011 Ariz. Sess. Laws, ch. 353, § 2. The House Bill Summary related to that change explained that the new legislation would "[r]edefine[] 'acting reasonably' as it applies to the justification of the use of force in crime prevention as acting to prevent what the person reasonably believes is the imminent or actual commission of any of the offenses." H. Summary of S.B. 1469, 50th Leg., 1st Reg. Sess. (Ariz. Apr. 25, 2011). Thus, the legislature has now applied an objective standard of reasonableness to both subsections.
¶23 In challenging the trial court's ruling, Mason focuses on counsel's failure to pursue a crime-prevention theory predicated on preventing aggravated assault. He maintains that the jury should have been instructed that he was "entitled to immediately use deadly force to prevent [A.N.]'s mere threat of shooting him" and that he was presumed "to be acting reasonably if he was acting in apprehension to prevent [A.N.] from committing a verbal threat to shoot or kill him." See §§ 13-1203(A)(2); 13-1204(A)(2).
Mason also suggests he was entitled to use force to prevent A.N. from "putting his family and dogs in apprehension of endangerment or aggravated assault." But in rejecting Mason's direct-appeal challenge to the trial court's failure to give a defense-of-others instruction, we concluded that there was "not the slightest evidence to support the inference that Mason had stabbed A.N. because he was acting under a reasonable apprehension of an immediate danger to others." Mason, No. 2 CA-CR 2018-0202, ¶ 20. Mason identifies no such danger in his petition for review, and our prior reasoning applies equally here.
¶24 On the record before us, the trial court did not abuse its discretion by finding no reasonable probability that the jury would have reached a different verdict had counsel successfully requested a crimeprevention justification instruction. As the trial court recognized, under this case's facts, the crime-prevention and self-defense justifications overlap significantly. Mason claimed to have believed that that A.N. had a gun and intended to shoot him, an action that might have either killed or seriously injured him and amounted to a homicide or an aggravated assault. Mason's testimony specifically established his knowledge of A.N.'s practices with firearms; that A.N. had pointed a gun at him and threatened to kill him many years earlier; that A.N had verbally threatened to shoot and kill him shortly before the stabbing; and that, after delivering the threat, A.N. had reached for an object in an area where Mason knew he kept weapons.
¶25 But the state presented evidence to disprove self-defense that would also have tended to rebut the crime-prevention justification's presumption of reasonableness, including A.N.'s age and frailty, the fact that his abusive behavior was overwhelmingly verbal in nature, and the fact that his prior threatening behavior with weapons was remote in time. We agree with the trial court that there was no reasonable probability that the jury, which had rejected a self-defense justification theory based on the foregoing evidence, would have accepted that Mason's having stabbed the elderly, intoxicated, seated victim multiple times was reasonable in response to the threat presented under the crime-prevention justification.
¶26 Mason's additional arguments are similarly unpersuasive. Citing the procedural requirement that courts make specific factual findings and express legal conclusions on each issue, see Ariz. R. Crim. P. 32.13(d)(1) , Mason faults the trial court for assuming, without deciding, that counsel performed deficiently instead of resolving the deficient-performance prong on its merits. The court's assumption, however, operated in Mason's favor.
¶27 Regardless, in light of its determination that Mason had failed to show prejudice, the court was not required to address deficient performance. See Pandeli, 242 Ariz. 175, ¶ 6 ("Although a defendant must satisfy both prongs of the Strickland test, this Court is not required to address both prongs 'if the defendant makes an insufficient showing on one.'" (quoting Strickland, 466 U.S. at 697)); State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) ("Failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim."). And because it issued a reasoned decision setting forth its findings of fact and conclusions of law on prejudice, the court complied with Rule 32.13(d)(1).
In light of our conclusion that the trial court did not err by rejecting Mason's claim on prejudice grounds, we do not consider Mason's arguments that counsel performed deficiently for various reasons or his challenge to the court's language in describing its "hesitation" to presume deficient performance. But we decline Mason's apparent request that we direct trial courts to infer deficient performance when counsel fails to request a factually supported crime-prevention instruction and does not articulate a strategic reason for doing so. Any such inference would be incompatible with the Supreme Court's directive that courts presume counsel acted reasonably, even when the record is silent on counsel's decision-making process. See Burt v. Titlow, 571 U.S. 12, 23 (2013) ("It should go without saying that the absence of evidence cannot overcome the 'strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'" (alteration in Burt) (quoting Strickland, 466 U.S. at 689)).
¶28 Next, relying primarily on Almeida, 238 Ariz. 77, ¶ 9, Mason faults the trial court for weighing the evidence and resolving evidentiary conflicts in denying relief. Mason overlooks, however, that the trial court is the factfinder in a post-conviction proceeding, and is thus not only permitted but required to find facts and resolve conflicts in the evidence. See Ariz. R. Crim. P. 32.13(d). In Almeida, we considered on direct appeal whether the trial court had erred by denying the defendant's request for a crime-prevention instruction. 238 Ariz. 77, ¶¶ 9-12, 21-23. We recognized that a defendant is entitled to a justification instruction when the slightest evidence supports it and that, in making that determination, a court should not weigh evidence or resolve conflicts therein. Id.; see also State v. Taylor, 169 Ariz. 121, 122-24 (1991).
¶29 Conversely, the question before the trial court here was not whether the evidence supported the instruction or whether it was correctly refused, but whether Mason had shown a reasonable probability of a different result had counsel requested the instruction and had it been given in response. See Strickland, 466 U.S. at 694. That question required the court to weigh all available evidence. See id. at 695 ("In making [the prejudice] determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.").
¶30 Mason also argues that "once [he] established constitutional violations occurred" the trial court should have required the state to prove those errors harmless beyond a reasonable doubt. See Ariz. R. Crim. P. 32.13(c). Mason appears to presume that counsel's admission that she had erred, standing alone, established a Sixth Amendment violation. But as discussed in Section II below, counsel's admission was not dispositive and, even if it were, it would only have established deficient performance. See Robertson v. Pichon, 849 F.3d 1173, 1188 (9th Cir. 2017) ("Trial counsel's post-hoc explanation that his decision was based on a legal error is not dispositive, because Strickland 'calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.'" (quoting Harrington, 562 U.S. at 110)). A defendant must establish both deficient performance and prejudice to state a Sixth Amendment violation and, because Mason failed to prove prejudice, there was no such violation for the state to disprove. See Bennett, 213 Ariz. 562, ¶ 21.
¶31 Finally, Mason asserts that certain juror questions focusing on A.N.'s behavior and Mason's reactions thereto establish prejudice. He reasons that the questions show the jury's interest in "whether Mason was reacting to an imminent threat." But the jurors' apparent focus on A.N.'s threat's imminency was relevant to their evaluation of the self-defense justification, and sheds little light on how they would have assessed the evidence had they received a crime-prevention instruction. The trial court did not abuse its discretion by finding that Mason had failed to show prejudice from counsel's presumed deficient performance in failing to request a crime-prevention instruction.
Because any error by counsel in failing to request a crime-prevention jury instruction was not prejudicial, we need not address Mason's argument that the trial court should have also defined "unlawful physical force" for purposes of that instruction.
C. Domestic violence
¶32 At the post-conviction hearing, trial counsel testified that she had overlooked the need for an instruction advising the jury to view Mason's conduct from the perspective of a reasonable victim of A.N.'s domestic violence. See § 13-415 ("If there have been past [statutorily defined] acts of domestic violence . . . against the defendant by the victim, the state of mind of a reasonable person" under the self-defense justification "shall be determined from the perspective of a reasonable person who has been a victim of those past acts of domestic violence."). She opined that her oversight fell below the standard of care. Mason's expert on prevailing professional norms agreed.
¶33 In denying relief, the trial court assumed that Mason had proved deficient performance. The court, however, found that he had not shown prejudice. The court observed that Mason had testified at trial regarding A.N.'s violent nature, that the jury had been instructed to view the self-defense justification from the perspective of a reasonable person in Mason's situation, and that counsel in her closing argument had framed the reasonableness question in light of Mason's experiences. The court also cited our memorandum decision on direct appeal, in which we had concluded the instruction's omission did not result in fundamental error. See Mason, 2 CA-CR 2018-0202, ¶¶ 10-15 ("The[] instructions coupled with the closing arguments of counsel made clear that Mason's state of mind, as it pertained to his justification defense, was to be determined from the perspective of a reasonable person who had been subjected to A.N.'s behavior.").
¶34 Mason contends in conjunction with his argument as to § 13-411 that counsel's error in failing to request an instruction on the "justification domestic violence defense" "lowered the state's burden of proof for reasonableness" by permitting the jury to assess his conduct under a purely objective standard. But both the trial court and this court concluded otherwise after reviewing the instructions as a whole and in view of counsel's closing argument. See State v. Rix, 256 Ariz. 125, ¶ 38 (App. 2023) ("We do not assess jury instructions in a vacuum, instead looking to the instructions as a whole and in conjunction with counsel's closing argument."). Mason does not explain why this analysis was erroneous.
¶35 Further, § 13-415 does not, by its plain language, apply to the crime-prevention justification under § 13-411, nor does it act as a stand-alone basis for justification. Instead it defines how "the state of mind of a reasonable person" is to be evaluated under §§ 13-404, 13-405, and 13-406. § 13-415.
¶36 Finally, Mason's argument that the jurors' questions reveal they were "evaluating Mason's response from the perspective of a reasonable person who was not a victim of domestic violence," resulting in Strickland prejudice, is unavailing. See Strickland, 466 U.S. at 695. The jurors submitted the questions during trial, before they had received their final instructions and heard counsel's closing argument, which together, as described above, allowed them to consider the reasonableness of Mason's actions in light of his history with A.N. The trial court did not abuse its discretion by denying relief on this claim.
II. Domestic-violence expert
¶37 At the post-conviction hearing, counsel testified that she had not considered consulting with a domestic-violence expert as part of her trial preparation. She admitted she should have done so and opined that her omission fell below prevailing professional norms. Mason's expert on prevailing professional norms also opined that counsel's failure to, at a minimum, consult with an expert fell below the standard of care. To establish prejudice, Mason presented testimony from Dr. Jon McCaine, a clinical psychologist who specializes in domestic violence. Dr. McCaine testified as a "cold" expert, generally describing the dynamics of abusive households and the psychological impact of the abuse on household members, without specific reference to Mason's case.
¶38 The trial court expressly "reject[ed] that the decision was deficient." Citing State v. Sammons, 156 Ariz. 51, 56 (1988), the court noted that the decision whether to call an expert witness is a matter of trial strategy that will not be disturbed if it has a reasonable basis. The court concluded:
The central issue in this case was whether Mason reasonably believed the victim was reaching for a weapon during an argument making it reasonable for Mason to stab the victim to death. The jury was instructed that Mason's conduct should be evaluated from the perspective of a "reasonable person in the situation," and Mason presented evidence of his toxic relationship with the victim as well as the victim's possession and use of firearms. A competent attorney could reasonably have concluded that expert testimony on domestic violence was unnecessary under these circumstances. Indeed, present counsel did not raise this claim in Mason's initial petition, and acknowledged at the hearing that the issue was not obvious given the family dynamics at issue.
The court did not address Strickland's prejudice prong. See Pandeli, 242 Ariz. 175, ¶ 6 ("Although a defendant must satisfy both prongs of the Strickland test, this Court is not required to address both prongs 'if the defendant makes an insufficient showing on one.'" (quoting Strickland, 466 U.S. at 697)).
¶39 As a threshold matter, to the extent Mason suggests otherwise, counsel's admission of error is not dispositive of the deficientperformance inquiry. See Robertson, 849 F.3d at 1188; see also Chandler v. United States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) ("Because the standard is an objective one, that trial counsel (at a post-conviction evidentiary hearing) admits that his performance was deficient matters little."). The same is true of opinions offered by a standard-of-care expert. See Bigger, 251 Ariz. 402, ¶ 14 (recognizing that courts may consider expert testimony to resolve ineffective-assistance claims, but cautioning that guidelines as to reasonableness do not constitute rules that counsel must follow). Rather, "when assessing the reasonableness of strategic decisions, courts may consider any information that informs the analysis," so long as they do not "substitute their after-the-fact judgment for counsel's during trial." Id. ¶ 22.
¶40 Here, by expressly "reject[ing] that the decision was deficient," the trial court necessarily discounted counsel's admission of error. See State v. Estrada, 209 Ariz. 287, ¶ 22 (App. 2004) (deferring to trial court's implicit factual finding). The court appropriately analyzed counsel's performance under an objective standard and applied the presumption of reasonableness, ultimately concluding that a reasonable attorney could have decided that expert testimony would not have been helpful. Strickland, 466 U.S. at 689; Bigger, 251 Ariz. 402, ¶ 8.
¶41 Moreover, counsel did not overlook the significance of domestic violence: she placed evidence of A.N.'s abusive behavior before the jury, and she encouraged the jury in closing argument to consider that evidence in evaluating the reasonableness of Mason's actions. While "cold" testimony from a domestic-violence expert may have provided additional context for Mason's behavior, objectively reasonable counsel could have determined that the dynamic between A.N. and Mason, as well as the events immediately preceding A.N.'s stabbing, were not complicated and were easily understood. See Ariz. R. Evid. 702(a) (expert testimony admissible if it will help the trier of fact).
¶42 Arguing otherwise, Mason relies on State v. Denz, 232 Ariz. 441, ¶¶ 6-19 (App. 2013), in which we concluded that trial counsel had been ineffective in a child-abuse case for not consulting with a medical expert. But the state's case in Denz revolved around complicated medical testimony concerning the cause and timing of the child victim's injuries. Id. We concluded that counsel lacked the expertise to form an informed strategy to combat that evidence without seeking assistance from an independent expert. Id. Here, as set forth above, the subject matter was relatively straightforward, and expert testimony would not have meaningfully added to the evidentiary presentation. The trial court did not abuse its discretion by denying relief on this claim.
Because we affirm the trial court's ruling on deficient performance, we need not address Mason's arguments as to prejudice.
III. K.M.
¶43 As discussed above, K.M. was in another room of A.N.'s house at the time of the stabbing. He told police that he had heard Mason say to A.N., "[W]hat are you gonna do now, put a gun up to me. You don't have a gun. It's in your room." But later in the same interview, K.M. clarified, "Well, I didn't hear the, you don't have a gun now, but it had, you put a gun to my head when I was younger, or whatever."
¶44 At trial, the prosecutor attempted to elicit testimony from K.M. that he had heard Mason say that A.N.'s gun was in his room. When K.M. could not remember that statement, the prosecutor played a recording of his police interview. However, the prosecutor did not play the portion of the interview containing K.M.'s clarification. Counsel similarly did not play that portion of the interview. At the post-conviction hearing, counsel admitted that her failure to play the remainder of K.M.'s statement fell below the standard of care. Mason's expert on prevailing professional norms agreed.
¶45 The trial court rejected the claim for lack of prejudice:
Assuming deficient performance, prejudice has not been shown. Although K.M. backtracked from hearing Mason say: "you don't have a gun now," he did not retreat from his entire statement, including hearing that the victim's gun was in his room, and he added hearing Mason say something about putting a gun to his head when he was younger. Although the second statement was rehabilitating, it was somewhat garbled and potentially confusing. Mason, therefore, has not shown that there is a reasonable probability that presentation of K.M.'s second statement would have resulted in a different outcome at trial.
¶46 On review, Mason challenges the trial court's finding that the second statement was "garbled," asserting that it was instead "clear and unequivocal." He contends that counsel's oversight allowed the state to exploit the comment in closing argument. But although Mason may consider the statement clear, he does not explain why the court's finding to the contrary was clearly erroneous, and we conclude that it was not unreasonable for the court to have found K.M.'s verbiage in the second statement potentially confusing. Moreover, as the court found, K.M. had not retracted his statement that Mason told A.N. that A.N.'s gun was in his room. Thus, K.M.'s apparent retraction of his claim that he heard Mason say, "You don't have a gun," would have been of minimal value. The court did not abuse its discretion by denying relief on this claim.
IV. Cumulative prejudice
¶47 In its ruling denying post-conviction relief, the trial court acknowledged Mason's request that it review the cumulative impact of counsel's alleged errors. But citing Pandeli, 242 Ariz. 175, ¶¶ 69-72, in which our supreme court declined to resolve whether ineffective-assistance claims are amenable to cumulative-error analysis, the court observed that "the Arizona Supreme Court has not recognized [cumulative error] in this context."
¶48 Relying on Ninth Circuit authority, Mason contends the trial court erred by failing to consider the cumulative prejudicial impact of counsel's purported errors. See Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438-39 (9th Cir. 1995). But Strickland and its progeny do not require such an assessment, and Ninth Circuit precedent does not bind either the trial court or this court. See, e.g., State v. Montano, 206 Ariz. 296, n.1 (2003) ("We are not bound by the Ninth Circuit's interpretation of what the Constitution requires.").
Likewise, our unpublished decision in State v. Skaggs, No. 2 CA-CR 2017-0032-PR, ¶¶ 15-19 (Ariz. App. July 31, 2017) (mem. decision), which suggests a cumulative-prejudice analysis is required, did not bind the court. See Ariz. R. Sup. Ct. 111(c)(1) (memorandum decisions are not precedential).
¶49 We are, however, bound by our supreme court's directive that, outside of the prosecutorial-misconduct context, we do not consider the cumulative effect of individual errors. See State v. Hughes, 193 Ariz. 72, ¶ 25 (1998) (Arizona does not recognize cumulative-error doctrine outside prosecutorial-misconduct context because "several non-errors and harmless errors cannot add up to one reversible error"). Because the court has not carved out an exception to this doctrine for ineffective-assistance claims, see Pandeli, 242 Ariz. 175, ¶¶ 69-72, the trial court did not abuse its discretion by declining to review the cumulative prejudicial impact of counsel's claimed errors.
Disposition
¶50 For all of the reasons stated above, we grant review but deny relief.