State v. Riley

• Citation: 248 Ariz. 154,459 P.3d 66
• Decision Date: 10 March 2020
• Docket Number: No. CR-15-0411-AP,CR-15-0411-AP
• Parties: STATE of Arizona, Appellee, v. Thomas Michael RILEY, Appellant
• Court: Arizona Supreme Court

248 Ariz. 154

459 P.3d 66

STATE of Arizona, Appellee,

v.Thomas Michael RILEY, Appellant,

No. CR-15-0411-AP

Supreme Court of Arizona.

Filed March 10, 2020

Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Lacey Stover Gard (argued), Chief Counsel, Capital Litigation Section, Tucson, Attorneys for State of Arizona

James J. Haas, Maricopa County Public Defender, Mikel Steinfeld (argued), Deputy Public Defender, Phoenix; Attorneys for Thomas Michael Riley

JUSTICE LOPEZ authored the opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, AND JUSTICES BOLICK, GOULD, BEENE, and PELANDER (Retired)^* joined.

JUSTICE LOPEZ, opinion of the Court:

¶1 This automatic appeal arises from Thomas Michael Riley’s convictions and death sentence for the murder of Sean Kelly. We have jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031, -4033(A)(1).

BACKGROUND

¶2 In June 2008, Riley and Kelly were inmates at the Arizona State Prison Complex-Lewis in Buckeye. With the intent of gaining full membership into the Aryan Brotherhood ("AB"), a violent prison gang composed of white inmates, Riley requested and received authorization from the AB to assault Kelly. On June 29, after divulging his plan to three other AB prospective members ("probates"), all of whom refused to assist and tried to talk him out of the murder, Riley and two accomplices sneaked into Kelly’s cell and stabbed him with homemade prison knives 114 times.¹ Riley then changed into Kelly’s clothing from his cell, washed up, and returned to his cell. Kelly was dead by the time correctional officers and medical staff responded to his cell.

¶3 In the subsequent investigation, correctional officers found blood on Riley’s elbows and forearm. Inside Kelly’s cell, investigators found a bloody pair of pants with Riley’s inmate card inside its pocket and a bloody shirt imprinted with Riley’s inmate number. Inside Riley’s cell, investigators found a pair of socks and a t-shirt with Riley’s inmate number, both of which had blood on them. Subsequent DNA testing confirmed that the blood on Riley, as well as the blood on the socks and t-shirt in his cell, matched Kelly’s DNA profile.

¶4 An investigator discovered that Riley had sent a change-of-address form to a book publisher listing his new address as a maximum-security facility. The investigator surmised that Riley mailed the form before Kelly’s murder because he had been in lockdown since the incident. At the time, Riley had not been scheduled for relocation.

¶5 Nearly two years after Kelly’s murder, another inmate gave investigators a letter he had received from Riley, explicitly describing the murder. Handwriting analysis, as well as the identification of Riley’s fingerprint on the letter, confirmed that he wrote it. In the letter, Riley claimed he had stabbed Kelly fifty times and his accomplices had stabbed Kelly twenty times each. He also listed three "defining moments" from the murder: (1) passing a frightened, young inmate on his way into Kelly’s housing area; (2) the look on the face of an inmate who had stumbled onto the scene while Riley was washing up; and (3) the sound of Kelly’s last breath leaving his limp body. Riley drew a large smiley face after that final sentence and signed the letter "Your hero the butcher" in both German and English.

¶6 A jury found Riley guilty of first degree murder and assisting a criminal street gang. The jury also found five aggravating circumstances: Riley was previously convicted of a serious offense; he committed the murder in an especially heinous, cruel, or depraved manner; he committed the murder while in the custody of the Arizona Department of Corrections ("ADOC"); he committed the murder to promote, further or assist a criminal street gang; and he committed the murder in a cold and calculated manner without pretense of moral or legal justification. A.R.S. §§ 13-751(F)(2), (F)(6), (F)(7)(a), (F)(11), and (F)(13) (2012). Considering these factors and the mitigation evidence, the jury found death was the appropriate sentence for Kelly’s murder. The trial court also sentenced Riley to 11.25 years’ imprisonment, consecutive to the death sentence, for the criminal street gang offense.

DISCUSSION

A. Denial of Motion to Change Counsel

¶7 Riley argues the trial court erroneously denied his motion to change counsel. We review the court’s denial of a request for new counsel for abuse of discretion. State v. Hernandez , 232 Ariz. 313, 318 ¶ 11, 305 P.3d 378, 383 (2013). An abuse of discretion occurs when "the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Chapple , 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 (1983), superseded by statute on other grounds .

¶8 On August 25, 2013, nearly two years after the initial indictment and two years before trial, Riley filed a motion to change his lead counsel, Randall Craig, on a pre-prepared form that provided no factual basis for the request. Craig responded by informing the court in writing "that communication between Defendant and Counsel now ceases to exist. Defendant is no longer accepting Counsel’s advice." Craig also stated, "A mutual distrust exists between Defendant and Counsel. Counsel has tried to repair the damaged relationship but has been unable to do so." Ultimately, he urged the court to grant the motion to ensure Riley "receive[d] adequate assistance of counsel."

¶9 On September 11, the trial court held a hearing to address Riley’s motion. After noting the lack of grounds supporting the motion, the court asked Riley if he had anything to add. Riley made general statements regarding the lack of communication, cooperation, and trust between him and Craig, dating back six to eight months. The court informed Riley he was entitled to competent counsel, not "a great relationship," and observed that both of Riley’s attorneys were competent. Riley complained Craig was frequently unreachable and had only spent four hours at the prison discussing Riley’s case with him in the preceding year-and-a-half. Riley stated that his relationship with Craig had "clearly deteriorated to where there is no trust at all."

¶10 When questioned by the court, Craig stated, "[W]ith all candor to the court, I must say we aren’t communicating. I have to be honest with that fact. We are not. He doesn’t seem to like me." After the court noted that Riley did not have to like his attorneys, Craig stated, "I understand. And that’s all that I am going to say at this point." The court then informed Riley that it was not inclined to grant the motion "without more." Riley added that Craig had failed to show up to four or five scheduled meetings at the prison, had failed to conduct witness interviews, and had failed to appear at an appointment to view the crime scene. In response to the trial court’s observation that Craig appeared to be preparing his defense, as evidenced by his hiring mitigation specialists and an investigator, Riley conceded that "[t]he mitigation aspect is ahead of schedule. I will give him credit." After Riley finished his argument and after a brief recess, the trial court denied Riley’s motion to change lead counsel.

¶11 Craig continued as Riley’s counsel after the trial court denied the motion to change counsel. Craig served as Riley’s advisory counsel during his brief period of self-representation (April 1, 2015–October 5, 2015) and then resumed his role as lead counsel during the trial. Riley did not renew his motion to change counsel.

¶12 The Federal and Arizona Constitutions guarantee criminal defendants the right to representation by competent counsel. State v. Goudeau , 239 Ariz. 421, 447 ¶ 77, 372 P.3d 945, 971 (2016) (citing U.S. Const. amend. VI ; Ariz. Const. art. 2, § 24 ; A.R.S. § 13-114(2) ; State v. LaGrand , 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987) ). An indigent defendant, however, is not "entitled to counsel of choice, or to a meaningful relationship with his or her attorney." State v. Torres , 208 Ariz. 340, 342 ¶ 6, 93 P.3d 1056, 1058 (2004) (quoting State v. Moody (" Moody I "), 192 Ariz. 505, 507 ¶ 11, 968 P.2d 578, 580 (1998) ). "But when there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel, that defendant’s Sixth Amendment right to counsel has been violated" and a resulting conviction must be reversed. Id. ; accord Moody I , 192 Ariz. at 509 ¶ 23, 968 P.2d at 582.

¶13 To preserve a defendant’s Sixth Amendment right to counsel, the trial court has a "duty to inquire as to the basis of a defendant’s request for substitution of counsel." Torres , 208 Ariz. at 343 ¶ 7, 93 P.3d at 1059. During this inquiry, the defendant bears the burden of proving either a "complete breakdown in communication or an irreconcilable conflict." Id. at 342 ¶ 6, 93 P.3d at 1058. "To satisfy this burden, the defendant must present evidence of a ‘severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible.’ " Hernandez , 232 Ariz. at 318 ¶ 15, 305 P.3d at 383 (quoting United States v. Lott , 310 F.3d 1231, 1249 (10th Cir. 2002) ). A defendant must show more than "personality conflicts or disagreements with counsel over trial strategy." State v. Cromwell , 211 Ariz. 181, 187 ¶ 30, 119 P.3d 448, 454 (2005). A defendant’s claims against his attorney of ineffective trial preparation and failure to communicate, when unsupported by the record, are generally characterized as disagreements over trial strategy. See Hernandez , 232 Ariz. at 321 ¶ 33, 305 P.3d at 386.

¶14 In response to Riley’s complaints, Craig acknowledged that "communication between Defendant and counsel now ceases to exist," which is precisely the situation that, if true, would entitle Riley to substitution of counsel. Craig added that mutual distrust existed with his...