State v. Mieg
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) 1 CA-CR 08-0964 ) ) DEPARTMENT E ) ) O P I N I O N ) ) ) ) ) ) ) Appellant, v. JASON ALLEN MIEG, Appellee. DIVISION ONE FILED: 10-07-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH Appeal from the Superior Court in Maricopa County Cause Nos. CR 2007-178609-001 DT and CR 2008-007379-001 DT The Honorable Arthur T. Anderson, Judge REVERSED AND REMANDED Richard M. Romley, Maricopa County Attorney By Linda Van Brakel, Deputy County Attorney Attorneys for Appellant Phoenix James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellee Phoenix H A L L, Judge ¶1 Following a mistrial declared when a state s witness mentioned the offense for which defendant was arrested but not charged, uncharged the state offense. obtained The a trial new court indictment adding subsequently the granted defendant s motion to dismiss all charges with prejudice based on prosecutorial vindictiveness. Because we conclude that the undisputed facts fail to establish a prima facie case of vindictive prosecution, we reverse the dismissal and remand for reinstatement of the indictment. BACKGROUND ¶2 Police stopped the car being driven by defendant after they observed several traffic violations. a scale in the map pocket of After an officer saw defendant s vehicle that he recognized as a type commonly used to weigh drugs, he arrested defendant for possession of drug paraphernalia. When another officer searched defendant incident to the arrest, he discovered two baggies of methamphetamine in defendant s pockets. The state charged defendant by direct complaint with one count of possession or use of a dangerous drug, methamphetamine. After a preliminary hearing, a commissioner found that probable cause supported the charge. ¶3 Defendant moved to suppress the scale and drugs claiming that the arrest stemmed from the seizure of the scale in violation of the Fourth Amendment. After a hearing, the trial court denied defendant s suppression motion. After the jury was sworn in but before opening statements, defendant made an oral motion in limine before the judge pro tempore assigned to try the case to preclude admission of any reference to the scale or the paraphernalia arrest, citing Arizona Rule of Evidence 404(b), and arguing that any evidence regarding the 2 scale would be unduly prejudicial and confusing because defendant was not charged with possession of drug paraphernalia. The court granted the motion over the prosecutor s objection because the scale was not charged and the prejudicial effect of the scale outweighs any probative value. The court ordered the prosecutor to advise her witnesses simply to testify that police had placed methamphetamine defendant was under discovered in a arrest, search and that the to that incident arrest. ¶4 On direct examination later that day, the prosecutor asked one of the officers if the Jason who was arrested was the same person as defendant. In response, the officer testified Yes and then volunteered that defendant was then told that he was being placed under arrest for possession of drug paraphernalia. mistrial. Defendant promptly objected and moved for a The state opposed a mistrial, arguing that striking the offending testimony and issuing a curative instruction would suffice. The court found that the mention of the paraphernalia arrest was inadvertent and unintentional, but nonetheless reluctantly declared a mistrial. ¶5 indictment After the mistrial, the state served defendant with an charging him with one count of possession of a dangerous drug, and, in addition, one count of possession of 3 drug paraphernalia. On the state s motion, the information was dismissed without prejudice. ¶6 Defendant then moved to dismiss grounds of prosecutorial vindictiveness. the indictment on Defendant argued that the prosecutor had filed the additional charge of possession of drug paraphernalia in retaliation for defendant s exercise of the following rights: (1) to take the charges to trial; (2) to seek to dismiss the charge because the superior court file did not contain an information;1 and (3) to seek a mistrial. He further argued that the following circumstances gave rise to a presumption of vindictiveness: (1) the timing of the addition of the charge after defendant successfully obtained a mistrial; (2) the prosecutor s refusal to dismiss and re-file to cure the lack of an information; and (3) the ambush-like service of the indictment on defendant outside of defense counsel s presence. In response, the state argued that the circumstances did not give rise to a presumption of vindictiveness. The state further argued that even if the presumption of vindictiveness applied, it had adequately rebutted it by explaining that the prosecutor 1 Defendant had filed a pretrial motion to dismiss the original charge for lack of jurisdiction based on the absence of an information in the court file. Noting that the arraignment minute entry reflected that an information had been filed and that defendant in any event had notice of the charge, the court denied the motion. 4 had re-evaluated the charges in light of the court s ruling precluding admission of any reference to the drug paraphernalia. ¶7 The trial court found sufficient facts to support the presumption of vindictiveness and that the state failed to rebut the presumption. It granted defendant s dismiss the charges in both cases with prejudice. timely appealed. We have jurisdiction pursuant motion to The state to Arizona Revised Statutes (A.R.S.) section 13-4032(1) (2010). DISCUSSION ¶8 showing Arguing that defendant failed to make a prima facie sufficient to raise a presumption of prosecutorial vindictiveness, the state contends that the trial court erred by dismissing the charges with prejudice. ¶9 We agree. We review rulings on motions to dismiss for vindictive prosecution for an abuse of discretion. State v. Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App. 1997). A court abuses its discretion 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 n.18 (1983) (citation omitted).2 2 There is some disagreement over the correct standard of review for prosecutorial vindictiveness cases among and within the federal circuit courts. See United States v. Barner, 441 F.3d 1310, 1315 n.5 (11th Cir. 2006) (surveying the various standards of review in use in the circuits). But we agree with the Eleventh Circuit that [t]he disagreement is perhaps more 5 ¶10 A valid claim of prosecutorial vindictiveness limits a prosecutor s otherwise broad discretion over charging decisions. Blackledge v. Perry, 417 U.S. 21, 27-29 (1974). defendant s constitutional right to due process A criminal protects him from prosecutorial decisions that are motivated by a desire to punish him for doing something that the law plainly allowed him to do. United States v. Goodwin, 457 U.S. 368, 384 (1982). In other words, the Constitution s due process guarantees prevent prosecutors from punishing defendants for exercising their protected legal rights by subsequently subjecting them to more severe charges. Id. at 372. ¶11 are There two ways in which a defendant can demonstrate prosecutorial vindictiveness. First, a defendant may may show actual vindictiveness, i.e., he prove through objective evidence that a prosecutor acted in order to punish him for standing on his legal rights. United States v. Meyer, 810 F.2d 1242, 1245 (D.C. Cir. 1987) (citing Goodwin, 457 U.S. at 380-81, 384 & n.19). prosecutor here acted Defendant does not claim that the with actual vindictiveness. Second, because motives are complex and difficult to prove, Goodwin, 457 U.S. at 373, a defendant may rely on a presumption apparent than real, for even under an abuse of standard, errors of law receive no deference. Id. 6 of discretion vindictiveness if the circumstances likelihood of vindictiveness. ¶12 establish a realistic Blackledge, 417 U.S. at 27. Because a certain amount of punitive intent . . . is inherent in any prosecution, a claim of vindictive prosecution presents the delicate task of distinguishing between the acceptable vindictive desire to punish [a defendant] for any criminal acts, and vindictiveness which violates due process. United States v. Doran, 882 F.2d 1511, 1518 (10th Cir. 1989). If a defendant makes a prima facie showing that the charging decision is more likely than not attributable to vindictiveness by the prosecutor, Alabama v. Smith, 490 U.S. 794, 801 (1989), the burden shifts to the prosecutor to overcome the presumption by prosecutor s action. objective evidence justifying the Goodwin, 457 U.S. at 376 n.8; Blackledge, 417 U.S. at 29 n.7. ¶13 In Blackledge, the Supreme Court explained how increasing a defendant s charge from a misdemeanor to a felony after defendant secured a new trial on appeal gave rise to a realistic likelihood of vindictiveness: A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant s conviction becomes final, and may even result in a formerly convicted 7 defendant s going free. And, if the prosecutor has the means readily at hand to discourage such appeals by upping the ante through a felony indictment whenever a convicted misdemeanant pursues his statutory appellant remedy the State can insure that only the most hardy defendants will brave the hazards of a de novo trial. 417 U.S. at 27-28. ¶14 In Goodwin, on the other hand, the Supreme Court declined to apply a presumption of prosecutorial vindictiveness in a pretrial setting in which Goodwin was indicted on a felony charge after he requested a jury trial on a pending misdemeanor and petty Supreme offenses Court arising distinguished out of the Blackledge same because incident. it The involved a post-trial setting: [A] change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision. 381. 457 U.S. at This is so because the institutional bias inherent in the judicial system against the retrial of issues that have already been decided, id. at 376, gives the prosecutor and the court a stake in avoiding having to do over what it thought it had already done correctly. Id. at 383 (quoting Colten v. Kentucky, 407 U.S. 104, 117 (1972) (internal quotation marks omitted)). is Noting that a mere opportunity for vindictiveness insufficient rule[,] the to justify the Court held that 8 imposition [t]he of a prophylactic possibility that a prosecutor would respond to a defendant s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that warranted. ¶15 a presumption of vindictiveness is not Goodwin, 457 U.S. at 384. Blackledge and Goodwin demonstrate that the timing of the charging decision is frequently a significant factor in deciding whether a presumption of vindictiveness exists. courts in Arizona, as well as most courts in But other jurisdictions, nonetheless consider all relevant circumstances when evaluating whether to apply such a presumption in pretrial and post-trial settings. 484-86, 690 P.2d circumstances 775, before See State v. Noriega, 142 Ariz. 474, 785-87 (1984) concluding (discussing surrounding post-trial enhancement that allegation did not give rise to presumption of vindictiveness); State v. Tsosie, 171 Ariz. 683, 687, 832 P.2d 700, 704 (App. 1992) (applying totality of circumstances to pretrial charging decision: [T]he critical question . . . is whether the defendant has shown that all of the circumstances, when taken together, support a realistic likelihood of vindictiveness and therefore give rise to a presumption. ) (quoting United States v. Meyer, 810 F.2d 1242, 1246 (D.C. Cir. 1987)). For example, in Tsosie, we concluded that the unusual circumstances of that case gave rise to a presumption of prosecutorial vindictiveness 9 even though the case was in a pretrial setting. 171 Ariz. at 687-88, 832 P.2d at 704-05. ¶16 Cases in which the charge is altered following a mistrial require an analysis that does not fit neatly within the pretrial/post-trial dichotomy. following a mistrial, we When the state adds a charge believe that a totality-of-the- circumstances approach is particularly appropriate in evaluating whether to apply a presumption of vindictiveness. 882 F.2d at 1521 ( [W]e conclude that a See Doran, totality-of-the- circumstances approach is particularly appropriate in the postmistrial setting ). Blackledge/Goodwin/Smith Therefore, line of drawing cases, a on presumption the of prosecutorial vindictiveness would arise under the circumstances of this case if the state s action in seeking an indictment adding the additional charge was more likely than not explainable only as a penalty imposed on defendant for obtaining a mistrial. ¶17 Our consideration of the totality of the circumstances here persuades us that the trial court erred when it found that defendant had shown a realistic likelihood that the added charge was motivated by prosecutorial vindictiveness. First, because the trial ended before a verdict was reached, the state was not required to do over what it correctly. 10 thought it had already done ¶18 Second, the court s ruling on the first day of trial granting defendant s testimony regarding ability to defendant s prevented the present arrest, prosecutor oral had the scale, the was not motion in which full undoubtedly from to preclude restricted the circumstances anticipated. state limine a The reassessing decision before proceeding to trial. its of state s surrounding development timing any that the original the motion charging This circumstance makes it substantially less likely that the decision to add the drug paraphernalia charge was motivated solely by a desire to deter and punish defendant for asserting his right to a mistrial. See Goodwin, 457 U.S. at 381 ( It is unrealistic to assume that a prosecutor s probable response to [pretrial] motions is to seek to penalize and to deter. ). avoided any possibility of Although the prosecutor could have the evidence regarding the scale being excluded as not charged had it been included in the original information, we think it would ill-serve the public good to penalize the state when a prosecutor chooses not to bring all conceivable charges at the outset. See id. at 382 n.14 ( [T]here are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on outset. ). 11 the public record from the ¶19 Third, permitted to and perhaps respond to most an importantly, adverse the is ruling evidentiary state by changing strategy in an effort to strengthen its case when doing so does not violate a defendant s procedural rights. Here, the state s the decision paraphernalia to charge pursue to an ensure indictment that the adding evidence drug explaining defendant s arrest would be admissible at his retrial was a reasonable ruling. (6th and legitimate response to the court s pretrial See, e.g., United States v. Poole, 407 F.3d 767, 774 Cir. 2005) vindictiveness (concluding existed when that government no presumption added of drug-related charges following mistrial on weapon-possession offense after court had granted motion in limine excluding evidence that officers approached defendant after observing him make a drug sale); United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir. 1991) ( In the absence of procedural unfairness to the defendant, the government may increase charges or make them more precise based upon new information or further evaluation of the case. ); Doran, 882 F.2d at 1522 (circumstances surrounding filing of superseding indictment containing additional charges permitted a reasonable inference that given extra time to analyze the evidence, the Government legitimately decided the new theory of liability was appropriate ). 12 ¶20 The sole factor supporting a presumption of vindictiveness is that the drug paraphernalia charge was added after defendant asserted his right to a mistrial that was caused by the testimony of the state s witness in violation of a court order. As defendant points out, the mistrial here is therefore distinguishable from those that occur when a jury is unable to reach a verdict. See, e.g., United States v. Mays, 738 F.2d 1188, 1190 (11th Cir. 1984) (mistrial caused by jury s inability to reach a verdict does not arise from a defendant s exercise of a protected right). The significance of this circumstance is somewhat lessened, however, because, as the trial court found, the prosecutor did not intentionally elicit the testimony that caused the mistrial. that a curative prejudice to Further, although the prosecutor suggested instruction defendant, would she suffice readily to ameliorate acknowledged any that the surrounding the testimony violated the court s order. ¶21 Having state s action charge, we considered in are the the seeking unable to circumstances additional say that the drug paraphernalia facts support a determination that the state s action is more likely than not explainable only as an effort to penalize defendant asserting his legal right to request a mistrial. that the trial court erred by finding otherwise. 13 for We conclude ¶22 Because no presumption applies, defendant was required to show that the charges in the post-mistrial indictment were motivated by actual vindictiveness. that the prosecutor was actually Defendant did not claim vindictive; therefore, the trial court abused its discretion when it granted defendant s motion to dismiss. CONCLUSION ¶23 charges We with reverse the prejudice trial and court s remand for order dismissing reinstatement indictment. /s/ PHILIP HALL, Judge CONCURRING: /s/ SHELDON H. WEISBERG, Presiding Judge /s/ JOHN C. GEMMILL, Judge 14 of all the
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