STATE v. KIMM

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 DIVISION ONE FILED: 08/30/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellant, ) ) v. ) ) JACK KIMM, ) ) Appellee. ) ) __________________________________) No. 1 CA-CR 11-0153 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in La Paz County Cause No. S1500CR200900039 The Honorable Richard Weiss, Judge VACATED AND REMANDED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Jeffrey L. Sparks, Assistant Attorney General And Arizona Prosecuting Attorneys Advisory Council By Faith C. Klepper And Colorado River Indian Tribes By Michael K. Henson, Special Prosecutor Co-counsel for Appellant Nash & Kirchner, P.C. By William J. Kirchner And Frank E. Sundstedt (admitted pro hac vice) Co-counsel for Appellee Phoenix Phoenix Parker Tucson Huntington Beach, CA S W A N N, Judge ¶1 for The trial court dismissed the prosecution of Jack Kimm forgery court s and findings perjury were with prejudice. insufficient to Because justify the that trial dismissal under Arizona Rule of Criminal Procedure 16.6(d), we vacate the order and remand the case to the trial court. FACTS AND PROCEDURAL HISTORY ¶2 In January indicted Kimm perjury. For several years, Kimm had loaned Rayburn Evans money on 2007, four a grand counts of jury forgery in and La Paz one County count of to operate a hay farm, and Kimm eventually sued Evans to recover unpaid debt. The underlying allegations in the indictment were that Kimm had forged Evans s signature on four contracts, and that he had lied about the signatures authenticity during a civil deposition. ¶3 After the indictment, Kimm filed a motion to dismiss the case and a motion to disqualify the La Paz County Attorney from prosecuting it. At an evidentiary hearing held on June 26, 2008, Martin Brannan, the county attorney at the time, conceded that his office should not handle the case because of his association with Evans, who was a former La Paz County Sheriff. In response to Kimm s argument that the criminal case should be dismissed because it was delaying the civil case against Evans, the court said that it was unwilling to take that step based on 2 the record before it. Brannan agreed to a dismissal without prejudice, and the court ordered that dismissal. ¶4 office On (at February this point 3, 2009, under the the La Paz leadership County of a Attorney s new attorney, Sam Vederman) formed another grand jury. county The grand- jury hearing was conducted by the chief deputy county attorney, Thomas Jones. Jones read the perjury statute to the jurors on the record, but not the forgery statute. The foreperson said that the forgery statute had already been read to them. ¶5 The only witness who presented evidence to the grand jury was a La Paz County investigator, Frank Haws. As Haws explained Evans s and Kimm s business agreement, one juror asked Haws whether Evans had fulfill[ed] the obligations of those contracts . contracts[.] . . during those four years Haws said, That I do not know. of the invalid Well, it depends on who you talk to, whether it be Jack Kimm or Rayburn Evans. The same juror then asked whether, under the contracts at issue, Evans had lost any money and whether the amount lost had any significance under the law. Again, Haws said, I do not know. It depends on who you talk to. Another witness, referring to the civil action that gave rise to the perjury charge, asked, Was the lawsuit ever brought to court? and then, to clarify, [W]as there any -- was Rayburn charged -- forced to pay this money or asked to pay it through the courts? 3 ¶6 At the conclusion of the testimony, Jones, apparently responding to the juror s question about involved, summed up the law by saying: monetary amounts It s just, under the law, if the -- if something is -- If there s a false statement or . . . oath or somebody forges a signature, it just -- that the act itself is -- is the crime is -- is the way the statute reads. The grand jury returned a true bill charging Kimm on all five counts: four counts of forgery and one of perjury. ¶7 In May and July 2009, Kimm filed a motion to disqualify, a motion to dismiss, and a motion for a new finding of probable cause. The court granted the motion to disqualify on March 8, 2010, and Michael Henson, from the Colorado River Indian special Tribe s Attorney prosecutor. On General s February Office, 24, was 2011, appointed an as evidentiary hearing was held on the motion to dismiss. ¶8 At that hearing, Kimm questioned Haws and established that Haws had been the only witness before both of the grand juries. Haws also admitted that he was friends with Rayburn Evans. Kimm asked Haws about criminal allegations that Kimm had filed against Evans in the police departments of the Colorado River Indian Tribe and the town of Parker during the 4 period between indictments.1 Haws explained that the county attorney s office had brought no charges against Evans because Mr. Brannan felt it was just a smoke screen by Jack Kimm and he thought it was . . . a civil matter. ¶9 Kimm also asked Haws about two handwriting experts reports that he had summarized for the grand jury. Haws admitted that the word he had used -- forgery -- did not actually appear in either expert s report. Haws also testified about the contracts with allegedly forged signatures. had reported that four of those documents had An expert in fact been signed by Evans, whereas another four had signatures that were trace simulations. about the section Haws admitted that he told the grand jury of the expert s report dealing with the allegedly forged documents, but that he said nothing about the report s mention of the genuine signatures. ¶10 At the end of the evidentiary hearing, the court emphasized the importance of the integrity of the system, and it noted that the prosecutor, as the minister of justice, had a duty of impartiality. indictment s dismissal, The court found that after the first Kimm had presented a barrage of information to the state, it was only begrudgingly accepted, 1 Kimm had alleged that Evans committed theft by selling $40,000 worth of hay that, under the terms of their agreement, belonged to Kimm. 5 and the state information, [between performed the Kimm court and no further said, Evans], a investigation. addressed business That the relationship relationship, that was directly connected to the documents that the state is moving as forgeries[,] and the business relationship called into question the portion of the forgery statute -- the intent to defraud -that Jones had omitted in his summary of the law. The court noted that the omission of the intent element was also troubling because one expert report had used the term simulation, but Haws had summarized the reports using the term forgery. The court also found that it was probably misleading for Haws to respond to the juror s question about fulfillment of the contractual obligations by saying, It depends on who you talk to, because although Haws had spoken to Evans, he had never actually spoken to Kimm. ¶11 The court closed its findings by stating that the state s behavior had been an affront upon the integrity of the grand jury needed at process least to and be it was remanded very to clear the that grand the jury matter but the history of the case presented the question whether the case should be dismissed with prejudice. Stating that it tend[ed] to think that it should be[,] the court dismissed the case with prejudice. 6 ¶12 The state timely appeals, under A.R.S. § 13-4032(1). and we have jurisdiction On appeal, the state argues that the trial court abused its discretion by dismissing the case with prejudice. DISCUSSION ¶13 The trial court has inherent authority to dismiss a prosecution. 1039, 1040 State v. Hannah, 118 Ariz. 610, 611, 578 P.2d (App. 1978). The effects of articulated in Ariz. R. of Crim. P. 16.6(d). that the prejudice [d]ismissal to of commencement a of prosecution another dismissal are That rule states shall be prosecution, without unless the court order finds that the interests of justice require that the dismissal be with prejudice. ¶14 interests The of court is justice required finding prosecution with prejudice. to make expressly the before Rule 16.6(d) dismissing a State ex rel. Jenney v. Superior Court (Austin), 122 Ariz. 89, 90, 593 P.2d 312, 313 (App. 1979) (dismissal was without prejudice for lack of the finding mandated by the rule ); see also State v. Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App. 1991) ( There can be no dismissal with prejudice unless the interests of justice require it. ). 7 ¶15 To be valid, the interests of justice finding must consist of more than a pro forma invocation of the phrase. See In re Arnulfo G., 205 Ariz. 389, 391, ¶ 12, 71 P.3d 916, 918 (App. 2003) (explaining that the phrase in the interests of justice does not consist of magic words ). It must also amount to something more than a vague, generalized finding. Gilbert, 172 Ariz. at 404, 837 P.2d at 1139. trial court prejudice is not simply permitted by finding to dismiss that For instance, the a finality prosecution in a with particular criminal prosecution would serve the interests of justice. Id. Nor the is a dismissal with prejudice appropriate under generalized finding that witnesses memories fade and evidence is lost with the lapse of time. State v. Granados, 172 Ariz. 405, 407, 837 P.2d 1140, 1142 (App. 1991). ¶16 To justify a dismissal with prejudice, an interests of justice finding must be a reasoned finding. State v. Garcia, 170 Ariz. 245, 248, 823 P.2d 693, 696 (App. 1991). That reasoned finding must actually weigh the factors that bear on the issue, id., and it must express why the court is concluding that in the particular case before it the interests of justice require that the dismissal be with prejudice. Ariz. R. Crim. P. 16.6(d); State v. Wills, 177 Ariz. 592, 594, 870 P.2d 410, 412 (App. 1993) (an interests 8 of justice finding is insufficient if it is a cursory finding ). We expressed this in State v. Wills, holding that: the rule requires the trial court to state on the record its reasons for concluding that dismissal with prejudice is in the interests of justice. This statement must be based on a particularized finding that to do otherwise would result in some articulable harm to the defendant. 177 Ariz. at 594, 870 P.2d at 412. ¶17 Because the dismissal of prosecutions is a matter within the trial court s discretion, there is no bright-line rule for determining in advance what will and will not be an articulable harm to the defendant justifying dismissal with prejudice. See State ex rel. Jenney, 122 Ariz. at 90, 593 P.2d at 313 ( [T]he court, prior to dismissing a criminal case, must properly balance the conflicting interests involved, society s and the defendant s, in deciding whether to make the dismissal with or without prejudice. ); State v. Huffman, 222 Ariz. 416, 421, ¶ 12, 215 P.3d 390, 395 (App. 2009) ( [T]rial courts have always had both the flexibility to weigh the competing interests of the state and the defendant . . . [as well as] the authority and discretion to dismiss charges with prejudice when it would be unfair to allow the prosecution to continue. ). ¶18 that Arizona cases have identified at least three factors weigh in favor of dismissing with prejudice. First, dismissal of the prosecution with prejudice can be appropriate 9 when a dismissal without prejudice would ability to defend against the charges. at 405, 837 P.2d at 1140. harm a defendant s See Gilbert, 172 Ariz. Second, it can be appropriate when the state is acting with the motive of simply harassing a defendant. Id. Third, it can be appropriate when the state is seeking a dismissal without prejudice simply to gain a tactical advantage. ¶19 Id. Arizona cases have also identified factors that by themselves are insufficient to justify dismissing a prosecution with prejudice. See, e.g., Hannah, 118 Ariz. at 610-11, 578 P.2d (prosecutor s at 1039-40 failure to appear in court); Garcia, 170 Ariz. at 248, 823 P.2d at 696 (lapse of an arbitrary time limit set by the trial court); Granados, 172 Ariz. at 407, 837 P.2d at 1142 (defendant left the country with the recanting victim); Arnulfo G., 205 Ariz. at 392, 71 P.3d at 919 (dismissal without prejudice would expose juvenile defendant to possible prosecution for felony offenses in adult court). But compare State ex rel. DeConcini v. Superior Court (Apodaca), 25 Ariz. App. 173, 175, 541 P.2d 964, 966 (1975) (holding that the financial and emotional expense of six months of prosecution incurred by a defendant was not of concern for a dismissal with prejudice), with Huffman, 222 Ariz. at 420, ¶ 12, 215 P.3d at 394 (suggesting that the trial court may properly consider 10 the additional expense, prejudice and anxiety experienced by a defendant waiting for reprosecution ) (citation omitted). ¶20 Our opinion in discretionary character. Huffman conveys the dismissal s In that case, we acknowledged that there is no need to limit trial courts to any specific list of factors they may utilize in deciding whether and in what manner a prosecution should be dismissed under the unique circumstances before them. also stated before 222 Ariz. at 422, ¶ 15, 215 P.3d at 396. that making the its balancing interests test of the court justice must finding And we perform will be satisfied as long as it has considered the relevant competing interests of the defendant and the particular circumstances of each case. ¶21 state in light of the Id. Here, the written order stated only that the court was dismissing this matter with prejudice. The court s findings were all made at the February 24, 2011 hearing. We acknowledge that the court made many findings concerning the failings of the grand jury process in this case, and we have no quarrel with those findings. The court s statement that the prosecution s case against Kimm was an affront upon the integrity of the grand jury process makes clear that it found the interests of justice were ill-served. We conclude that the court made adequate findings to support remanding the case to the grand 11 jury, but that its findings did not go to the issue whether remand or dismissal with prejudice was the proper remedy. ¶22 Those support to the portions of dismissal the of court s Kimm s generalized rather than particular. findings case with that lend prejudice are In its ruling, the court pointed out that the integrity of the system is an important consideration in criminal matters. It correctly stated that Kimm s prosecutors, as ministers of justice for the state, had a special duty of impartiality in handling Kimm s prosecution. Those kinds of findings, as important and correct as they are, are still the same kinds of findings that this court has held to be insufficient grounds for dismissal with prejudice (such as, for instance, the finding that finality matters in a criminal case). See Gilbert, 172 Ariz. at 404, 837 P.2d at 1139. ¶23 Based on the court s findings that the law was misstated and evidence was not presented impartially, the court would not have erred if it had remanded. See Crimmins v. Superior Court (Collins), 137 Ariz. 39, 41, 668 P.2d 882, 884 (1983) (stating that due process requires the impartial presentation of the evidence to the grand jury); Francis v. Sanders, 222 Ariz. 423, 427, ¶ 17, 215 P.3d 397, 401 (App. 2009) (prosecutor s misstatement of entrapment s elements had the effect of interfering with the grand jury s proper function in determining whether prosecution would be a needless exercise ). 12 And it may be that the court s decision to dismiss the case with prejudice was specific, reasoned justified. the correct one -- finding[s] our why the rules simply remedy it require chose was Garcia, 170 Ariz. at 248, 823 P.2d at 696. CONCLUSION ¶24 We prejudice. vacate the order dismissing the case We remand the case to the trial court. with The trial court, in the exercise of its discretion, may either: reissue the order dismissing the case with prejudice after making the requisite Rule prejudice; or 16.6(d) remand the findings; case to dismiss the the grand case jury for without a new determination of probable cause. /s/ ___________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ JOHN C. GEMMILL, Presiding Judge /s/ ____________________________________ ANDREW W. GOULD, Judge 13

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