State v. Gilmore

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

PRINCESS MARGO GILMORE, Petitioner.

No. 1 CA-CR 25-0196 PRPC
FILED03-05-2026

Petition for Review from the Superior Court in Maricopa County
No. CR2017-001211-001
The Honorable Timothy J. Ryan, Judge Retired

REVIEW GRANTED; VACATED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Philip D. Garrow, Douglas Gerlach
Counsel for Respondent

Princess Margo Gilmore, Phoenix
Petitioner
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MEMORANDUM DECISION

Presiding Judge Daniel J. Kiley delivered the decision of the Court, in which
Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Petitioner Princess Margo Gilmore seeks review of the
superior court’s order summarily dismissing her petition for post-
conviction relief (“PCR”) filed under Arizona Rule of Criminal Procedure
(“Rule”) 32. We have considered the petition for review and, for the reasons
stated, grant review and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 While driving westbound on West Indian School Road in
Goodyear late one afternoon in July 2016, Gilmore entered the intersection
at North Litchfield Road against a red light. Her car collided with a pickup
truck, killing one of its two occupants. Gilmore was charged with
manslaughter and endangerment. See A.R.S. §§ 13-1103(A), -1201(A).

¶3 At trial, the State maintained that Gilmore failed to stop for
the red light because she was impaired by recent marijuana use. Gilmore
denied that she was impaired, insisting that the collision was “an accident”
rather than “a crime.” When defense counsel asked the investigating officer,
Goodyear Police Officer Guilbault, whether “glare” from the setting sun
could “possibly” have contributed to the collision, the officer answered,
“No.” When asked to elaborate, Officer Guilbault testified that the setting
sun could not have interfered with Gilmore’s ability to see the red traffic
light as she approached Litchfield Road because, given “the angle of the
intersection,” the sun would have been shielded from her view “behind the
buildings” along the side of the street.

¶4 Gilmore’s accident reconstructionist, Brett O’Toole, testified
about his analysis of the collision. He stated, among other things, that he
reviewed a security video obtained from a nearby business and was able to
determine that the setting sun was “pretty much exactly westward” at
“about 12 degrees up from the horizon,” and therefore sunlight would have
been “in the eyes” of “a driver driving westward.”

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¶5 O’Toole further testified that he had intended to “conduct[] a
scene inspection in July when the sun was at its approximate same position
as it was when the collision occurred.” He never conducted the inspection,
however, because he “had used up all [the] hours” of work that had been
“approve[d].” He “needed to get more hours” approved, he said, before he
could “go out to the scene and perform that work.” Because he “didn’t get”
approval for the additional hours, he stated, he “didn’t do that inspection.”

¶6 Jurors submitted several questions that were asked of O’Toole
on the issue of sun glare, including the following:

Regarding the possibility of sun in west bound [sic] driver’s
eyes, the Goodyear police stated there were buildings to the
side of the road that were blocking the sun in the westbound
traffic lanes, did your analysis take into account the
location/height of the buildings to determine the potential for
shading?

Based on your knowledge and information available, would
the glare on the [business’s] video be visible due to the
location of the camera, and not be the same for [Gilmore]?

When calculating the glare from the sun, did you also take
into account the buildings that would have been in the area
and whether they would or would not have been a factor for
[Gilmore]?

¶7 In response to these questions, O’Toole conceded that “it’s
possible” that glare would not have impaired a westbound driver’s view of
the intersection “if there were tall enough buildings . . . that could block the
sunlight[.]” He would have investigated that possibility, he stated, if he
“would have gone to look at the scene.”

¶8 In closing argument, the State argued that the evidence
showed that Gilmore was impaired by marijuana use, and denied that
Gilmore’s view of the intersection would have been impeded by glare from
the setting sun. The State argued,

[I]f not THC, then what caused this crash? If it wasn’t
marijuana, then how did the crash occur? Sun glare? No.

Referring to the evidence showing how long Gilmore had been traveling
west on Indian School Road before reaching the Litchfield Road

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intersection, the State posed the rhetorical question, “If the sun was such a
factor, why didn’t [Gilmore] crash earlier? That doesn’t make sense.”

¶9 The jury convicted Gilmore of negligent homicide as a lesser-
included offense of manslaughter, see A.R.S. § 13-1102(A), and acquitted her
of endangerment. The superior court sentenced her to six and a half years
of imprisonment. We affirmed her conviction and sentence on appeal. State
v. Gilmore, 1 CA-CR 20-0491, 2021 WL 3508535 (Ariz. App. Aug. 10, 2021)
(mem. decision).

¶10 Gilmore filed a PCR petition asserting a claim of ineffective
assistance of counsel (“IAC”). Her trial counsel was ineffective, she
asserted, because he failed to gather and present evidence showing that
when she ran the red light “she did, in fact, have sunlight in her eyes[,]
rendering it difficult for her to see.” Trial counsel “knew” from the outset
of the case that “glare was going to be an issue[,]” she said, and so he should
have “secure[d]” funding for his accident reconstruction expert to “go to
the scene[.]” Because trial counsel did not secure funding for a scene
investigation, Gilmore asserted, O’Toole was unable to refute Officer
Guilbault’s testimony that glare “could not have been a factor” in causing
the collision because the setting sun would have been concealed from
Gilmore’s view ”behind [a] building” as she approached the red light.

¶11 To support her IAC claim, Gilmore presented an affidavit
from O’Toole stating that he asked trial counsel to secure additional
funding so that he could “conduct [a] site inspection” to determine “how
nearby buildings may have affected the sun glare[.]” Because counsel did
not do so, O’Toole stated, he “was unable to perform an accurate
evaluation” before trial “of the sun’s effect on [Gilmore’s] vision” at the
time of the collision. Gilmore also submitted the affidavit of a private
investigator, Ralph McLaughlin, stating that he conducted two scene
inspections in which he traveled west on Indian School Road at the same
time of day that the collision occurred and found, both times, that his
“visibility was affected by glare due to the positioning of the [s]un[.]”

¶12 Noting that a conviction for negligent homicide requires
evidence of “a gross deviation from the standard of care[,]” Gilmore
asserted that “running a red light due to sunlight glare” is insufficient to
make such a showing. Evidence of “how bad the glare was,” she
maintained, might, therefore, have resulted in a different verdict. She
acknowledged that an attorney is not ineffective merely because his or her
trial strategy proves unsuccessful, but asserted that her trial counsel’s

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“[f]ail[ure] to secure payment for expert investigation [of] a known issue”
was not “sound trial strategy,” but “simply a lack of preparation[.]”

¶13 The superior court summarily dismissed Gilmore’s PCR
petition, finding that she failed to state a colorable IAC claim. Gilmore’s
counsel cannot be faulted for failing to present expert testimony, the court
held, because “the proposed testimony is about a subject[,]” i.e., sun glare,
“that does not require an expert.”

¶14 Gilmore petitioned for review of the superior court’s ruling.
We grant review under Article 6, Section 9 of the Arizona Constitution,
A.R.S. § 13-4239(C), and Rule 32.16.

DISCUSSION

¶15 Gilmore asserts that the superior court erred in summarily
dismissing her PCR petition, asserting that she is entitled to an evidentiary
hearing on her IAC claim. We review the superior court’s summary
dismissal of a PCR petition for an abuse of discretion. State v. Bigger, 251
Ariz. 402, 407, ¶ 6 (2021). An abuse of discretion occurs “if the PCR court
makes an error of law or fails to adequately investigate the facts necessary
to support its decision.” State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017)
(citation omitted).

¶16 To prevail on an IAC claim, a petitioner must “demonstrate
that counsel’s conduct fell below an objective standard of reasonableness
and that he was prejudiced thereby.” Bigger, 251 Ariz. at 407, ¶ 8 (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Under the first prong
of the Strickland test, “we must presume ‘counsel’s conduct falls within the
wide range of reasonable professional assistance’ that ‘might be considered
sound trial strategy.’” State v. Denz, 232 Ariz. 441, 444, ¶ 7 (App. 2013)
(quoting Strickland, 466 U.S. at 689). To overcome the presumption, a
defendant must show “counsel’s decisions were not tactical in nature, but
instead were the result of ‘ineptitude, inexperience or lack of preparation.’”
Id. (citation omitted). To establish the second prong of the Strickland test, a
defendant must “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have
been different.” State v. Miller, 251 Ariz. 99, 104, ¶ 17 (2021) (quoting
Strickland, 466 U.S. at 694). A “reasonable probability” is “a probability
sufficient to undermine confidence in the outcome.” State v. Anderson, 257
Ariz. 226, 234, ¶ 33 (2024) (citations omitted).

¶17 A superior court must summarily dismiss a PCR petition that
does not raise a colorable claim. Ariz. R. Crim. P. 32.11(a). A petitioner is

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entitled to an evidentiary hearing, however, if he states a colorable claim,
i.e., if “he has alleged facts which, if true, would probably have changed the
verdict or sentence.” State v. Amaral, 239 Ariz. 217, 220, ¶ 11 (2016).
(emphasis omitted). “When doubts exist, a hearing should be held to allow
the defendant to raise the relevant issues, to resolve the matter, and to make
a record for review.” Anderson, 257 Ariz. at 234, ¶ 34 (citation modified).

¶18 Gilmore asserts that her counsel’s failure to secure funds for
O’Toole to conduct a scene inspection constituted deficient performance
that prejudiced her defense. In response, the State argues, first, that the trial
court correctly concluded that whether “sun glare can affect an automobile
driver’s ability to recognize a red light . . . is not a subject that requires
expert testimony.”

¶19 The superior court was correct in noting that expert testimony
is not required to establish that glare from the sun can interfere with a
person’s ability to see. See In re Ubaldo B., 206 Ariz. 543, 547, ¶ 14 (App. 2003)
(noting that expert testimony is not admissible on matters of common
knowledge). But Gilmore’s IAC claim is not based on counsel’s failure to
present the testimony of an expert. Instead, the crux of Gilmore’s IAC claim
is that counsel should have arranged for a witness to conduct a scene
inspection to be able to offer testimony, based on personal knowledge,
about the position of the setting sun under conditions similar to those found
at the intersection of Indian School Road and Litchfield Road at the time of
the collision.

¶20 Of course, trial counsel is not required to “pursue all avenues
of investigation,” and counsel may reasonably decide “not to pursue a
particular investigative path based on his or her reasoned conclusion that
it . . . is . . . unnecessary in light of counsel’s chosen trial strategy.” Denz, 232
Ariz. at 445, ¶ 11. Similarly, decisions about what witnesses to call are
generally considered matters of trial strategy that are generally entrusted
to the judgment of counsel. State v. Lee, 142 Ariz. 210, 215 (1984) (“[T]he
power to decide questions of trial strategy and tactics rests with counsel,
and the decision as to what witnesses to call is a tactical, strategic decision.”
(citations omitted)). But “[a] purportedly strategic decision is not
objectively reasonable when the attorney has failed to investigate his [or
her] options and make a reasonable choice between them.” Denz, 232 Ariz.
at 445, ¶ 12. Here, the record discloses no reasoned basis for counsel to fail
to arrange for O’Toole to conduct a scene inspection to gather evidence
about the sun glare issue.

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¶21 The State asserts, next, that Gilmore cannot establish
prejudice from counsel’s failure to arrange for O’Toole to conduct a scene
investigation because “the trial record includes evidence of the existence of
sun glare at or near the time of the fatal crash,” including “a video recording
that allowed the jury to see the presence of sun glare around the time that
Gilmore drove through the red light.” Accordingly, the State maintains,
O’Toole’s testimony describing his observations of sun glare at the scene
would have been “cumulative” to other evidence, and “cumulative
evidence . . . does not support a claim for ineffective assistance.”

¶22 Evidence is cumulative if it “supports a fact otherwise
established by existing evidence.” State v. Romero, 240 Ariz. 503, 510, ¶ 17
(App. 2016) (citation modified). Evidence is not cumulative, however,
merely because it is “corroborated by other evidence.” Id. Further, evidence
on “the very issue in dispute” is never cumulative. Id. Here, the State denied
that sun glare was a factor in the collision. Officer Guilbault expressly
testified that the setting sun would not have prevented Gilmore from seeing
the red light because the sun would have been blocked from her view by
nearby buildings. The State argued to the jurors that the contention that sun
glare impeded Gilmore’s vision “doesn’t make sense.” Far from being
“cumulative,” evidence that a westbound driver like Gilmore would have
experienced glare from the setting sun would have been directly relevant
to the critical issue in dispute, i.e., the reason why Gilmore ran the red light.
See State v. Bass, 198 Ariz. 571, 581, ¶ 40 (2000) (recognizing that evidence of
a fact is not considered cumulative “where . . . it is the very issue in
dispute”).

¶23 Counsel’s failure to arrange for O’Toole to conduct a scene
inspection left the defense unable to rebut Officer Guilbault’s testimony
that the setting sun would not have impeded Gilmore’s ability to see the
traffic light. The record does not reflect any reasoned basis for counsel’s
failure to arrange for a scene inspection. See Bigger, 251 Ariz. at 408, ¶ 11
(“When evaluating the reasonableness of counsel’s strategic decisions, the
foundational inquiry is the rationale for the decision.”). The jurors’
questions show that they were concerned about the sun glare issue.
Gilmore’s PCR petition thus presented a colorable IAC claim by showing a
reasonable probability that, but for counsel’s failure to arrange for a scene
inspection, the result would have been different. See Anderson, 257 Ariz. at
234, ¶ 33. Because the present record affords no basis on which to conclude
that trial counsel made reasoned decision not to arrange for a witness to
conduct a scene inspection, an evidentiary hearing should have been
conducted to resolve that question. See id. at ¶¶ 34-35; Ariz. R. Crim. P.

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32.13(a) (“The defendant is entitled to a hearing to determine issues of
material fact[.]”).

¶24 Gilmore raises other claims on appeal as well, including that
the trial judge improperly failed to provide a substantive response to a juror
question, that the judge erred in failing to instruct on a lesser-included
offense, and that a recent change in the law entitles her to relief. Because
she never raised these alternative claims in her PCR petition, she cannot
raise them for the first time before this Court. State v. Andersen, 177 Ariz.
381, 385 (App. 1993).

CONCLUSION

¶25 We vacate the superior court’s order summarily dismissing
Gilmore’s PCR petition and remand for an evidentiary hearing.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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