STATE v. HON DUNCAN/MARTINSON

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ex rel., WILLIAM G. MONTGOMERY, Maricopa County Attorney Petitioner, ) ) ) ) ) v. ) ) THE HONORABLE SALLY S. DUNCAN, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) Respondent Judge, ) ) JEFFREY RICHARD MARTINSON, ) ) Real Party in Interest. ) __________________________________) 1 CA-SA 12-0217 DIVISION ONE FILED: 11/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT D MEMORANDUM DECISION (Not for PublicationRule 28, Arizona Rules of Civil Appellate Procedure) Petition for Special Action from the Superior Court in Maricopa County Cause No. CR 2004-124662-001 The Honorable Sally S. Duncan, Judge JURISDICTION ACCEPTED; RELIEF GRANTED William G. Montgomery, Maricopa County Attorney By Frankie M. Grimsman, Deputy County Attorney Attorneys for Petitioner Phoenix Michael Terribile And Law Office of Treasure VanDreumel, PLC By Treasure L. VanDreumel Attorneys for Real Party in Interest Phoenix Phoenix G O U L D, Judge ¶1 In this special action, we review the trial court s order denying indictment. the State s motion to dismiss the subject For the reasons that follow, we reverse the trial court s order. Factual and Procedural Background ¶2 On September 8, 2004, a grand jury returned an indictment (the 2004 Indictment ) charging Defendant with first degree felony murder and child abuse. both counts was Defendant s son. The alleged victim as to The state subsequently filed a notice of intent to seek the death penalty. ¶3 On The trial began with jury selection on July 12, 2011. July 29, while the parties were still engaged in jury selection, the court held a brief hearing in chambers regarding the 2004 Indictment. Citing State v. Styers, 177 Ariz. 104, 865 P.2d 765 (1993), the court noted its concern about a potential merger problem between the felony murder count and the child abuse count if the State presented intentionally murdered his son. a theory that Defendant Without setting any specific deadlines, the court directed counsel to research and brief the issue. The admissibility court of murdered his son. did not evidence make showing any ruling Defendant regarding the intentionally Rather, the court concluded the hearing by stating: 2 [W]e ll be talking a lot about this at the beginning of next week...[A]ll I can tell you is that this is something that is it may end up being much ado about nothing. But the fact that I m concerned about it and I m the judge means you need to be concerned about it. Fair enough? And maybe all you will bring something to my attention sooner rather than later that tells me, Stop worrying about this Judge. This isn t a problem. ¶4 On August 8, after the jury was sworn and prior to the State s opening statement, defense counsel made an oral motion to preclude admission of any evidence intentionally murdered his son.1 motion,2 reliance reasoning on a that felony pursuant murder suggesting that Defendant The court granted Defendant s to Styers theory, and such the State s evidence was inadmissible.3 ¶5 The trial proceeded, and on November 14, 2011, the jury returned verdicts finding Defendant guilty of first degree felony murder and child abuse. During the penalty phase the jury was hung, and the court declared a mistrial. Defendant then moved for new trial based on juror misconduct and various other trial 1 Neither party has provided this court with a transcript of the August 8 hearing. 2 We do not address whether the trial court erred in its interpretation of Styers or in granting Defendant s motion in limine based on Styers. These issues are not before us in this special action. 3 At oral argument, counsel referenced there was further briefing on this issue and a hearing on October 6. Neither the briefing nor the transcript of the October 6 hearing was provided to us as part of this special action. 3 errors. On March 27, 2012, the court granted Defendant s motion and later set a new trial for July 16, 2012. ¶6 On June 5, 2012, the state obtained a new indictment in Maricopa County Indictment ). Case In No. addition CR to 2012-007335-001 charging (the Defendant with 2012 first degree felony murder, the 2012 Indictment4 also charged Defendant with first degree premeditated murder. ¶7 In deciding to obtain the 2012 indictment, the State relied on the statements made by several hearing on the motion for new trial. jurors during the According to the State, these jurors expressed the belief that Defendant intentionally murdered his son. present evidence The State recognized, however, it could not of an intentional murder at a because of the court s previous evidentiary ruling. second trial As a result, the State obtained the 2012 Indictment under the assumption that with the addition of the premeditated murder charge, evidence of intentional murder would be admissible. ¶8 The State attempted to Indictment on August 6, 2012.5 formally dismiss the 2004 On that date, the State also 4 The 2012 Indictment also charged Defendant with two counts of child abuse. 5 The State contends that its delay in moving to dismiss the 2004 indictment was based on its mistaken belief the court dismissed the 2004 Indictment at the June 7, 2012 status hearing. 4 moved to dismiss the notice of death penalty. Thereafter, the court continued the trial date on both the 2012 Indictment and the 2004 Indictment to October 1, 2012. Defendant then moved to dismiss the 2012 indictment. ¶9 On September 19, the court granted Defendant s motion to dismiss the 2012 Indictment on the ground the state could not obtain the 2012 Indictment. the 2004 obtaining Indictment of first dismissing the 2004 On September 27, the State filed a motion to dismiss indictment6 a new without indictment, premeditated murder charge. Rule without Criminal Procedure prejudice e.g., an for the indictment purpose of containing a The State argued that pursuant to 16.6(a), there was good cause to dismiss the 2004 Indictment and that it was not seeking dismissal to avoid the speedy trial provisions of Criminal Procedure Rule 8.7 In his response, Defendant asserted the motion should be denied because the State failed to show there was good cause for the dismissal. ¶10 On October 1, the court held a hearing on the State s motion to dismiss the 2004 Indictment. At the conclusion of the 6 The state had previously urged the court to dismiss the 2004 Indictment in lieu of the 2012 Indictment, but withdrew this request at the September 19, 2012 hearing. 7 Prior to the October 2 trial, the State avowed to the trial court it was ready to go forward with the 2012 Indictment, and was not seeking a continuance of the trial. 5 hearing, the court denied the State s motion. In support of this decision, the court stated: [T]he court finds that absent new evidence or, frankly, any other legally permissive basis ... the State cannot seek to indict the defendant after a trial and after the granting of a mistrial where the State has previously argued that there is no evidence to support a premeditated murder charge. ¶11 Based on this ruling, the 2004 indictment remained in place, meaning that the State had to proceed to trial on the 2004 Indictment. the court On October 2, prior to commencing jury selection, clarified/added further findings in support of its order denying the State s motion to dismiss the 2004 Indictment. The court found that the State, rather than seeking appellate review of its evidentiary ruling, attempted to circumvent its ruling during the first trial by continuing to advance the argument Defendant intentionally murdered his son. The court considered the State s efforts to obtain a new indictment as another attempt to circumvent its evidentiary ruling. The court also found that [t]he State has acknowledged that there is no new evidence to present to the grand jury . . . that absent new evidence, there is no good cause for the State to dismiss the 2004 indictment for the stated purpose of seeking to have a premeditated murder charge returned against the defendant when the State has previously taken the position that it does not have sufficient evidence to support a premeditated murder charge. 6 The State then brought a special action from this order and asked us to stay the trial, which we did. Jurisdiction ¶12 We accept jurisdiction over this special action because the State has no equally plain, speedy and adequate remedy by appeal, given that the denial of a motion to dismiss is a nonappealable order. Ariz. Const. art. 6 §§ 5, 9; Ariz. Rev. Stat. ( A.R.S. ) §§ 12-2021, 13-4032 (West 2012)8; Ariz. R.P. Spec. Act. 1(a), 3(c). Discussion ¶13 The State argues that the trial court abused its discretion in denying the State s motion to dismiss the 2004 indictment. We review the denial of such a motion for an abuse of discretion. In applying an abuse of discretion standard, our role is not to second-guess the trial judge, or to substitute our judgment for that of the trial judge. State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 (1983); State v. Jones, 203 Ariz. 1, 5, ¶ 8, 49 P.3d 273, 277 (2002). the reasons cited by the court for its Instead, unless action are clearly untenable, legally incorrect, or amount to a denial of justice, we will defer to the judgment of the trial judge. Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 (internal citations omitted). 8 We cite the current version of the applicable statute because no revisions material to this decision have since occurred. 7 ¶14 In general, a court may not interfere with a prosecutor s discretion to decide which crimes and criminals to prosecute. State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976) (explaining that a court has no power to interfere with the discretion of the prosecutor in determining whether to file criminal charges and which charges to file ). [T]he duty and discretion to conduct prosecutions for public offenses rests with the county attorney. Murphy, 113 Ariz. at 418, 555 P.2d at 1112; see also A.R.S. § 11-532(A)(1)(2012); State v. Tsosie, 171 Ariz. 683, 685, 832 P.2d 700, 702 (App. 1992) ( It is within the sound discretion of the prosecutor to determine whether to file criminal charges and which charges to file. ). ¶15 However, a trial court may prevent a prosecutor from dismissing criminal charges when prosecutor s motion to dismiss. no good cause supports the According to Rule of Criminal Procedure 16.6(a), upon a motion of the prosecutor showing good cause therefor, dismissed at any [a court] time upon may order finding that that a the prosecution purpose dismissal is not to avoid the provisions of Rule 8. Crim. P. 16.6(a) (emphasis added). of be the Ariz. R. Because the operative word is may, not shall, the language of this rule indicates that dismissal is left to the court s discretion. is confirmed by the comment following This interpretation Rule 16.6(a), which explains that section (a) retains the policy of the 1956 Arizona 8 Rules of Criminal Procedure, Rule 239, that a case filed may not be dropped at the discretion of the prosecutor, but only by order of the court. ¶16 Arizona case law also demonstrates that a prosecutor may not unilaterally dismiss a case. Absent a showing of good cause, the court retains the discretion to deny a motion by the State to dismiss a case. State v Johnson, 122 Ariz. 260, 265, 594 P.2d 514, 519 (1979).9 See also State v. West, 173 Ariz. 602, 845 P.2d 1097 (App. 1993) (holding that pursuant to Rule 16.5(a), the predecessor to current Rule 16.6(a), a court retains discretion to deny a motion to dismiss by the prosecutor); Application of Parham, 6 Ariz. App. 191, 193, 431 P.2d 86, 88 (1967) (same). ¶17 The good cause requirement in Arizona s Rule of Criminal Procedure 16.6(a) implicitly requires that the motion to dismiss not be made in bad faith. On this basis, we find the jurisprudence analyzing Federal Rule of Criminal Procedure 48(a) persuasive. leave of This rule provides that [t]he government may, with court, complaint. Fed. dismiss R. an Crim. P. indictment, 48(a). information, Federal courts or have interpreted this rule to require a finding of something that is tantamount to bad faith in order 9 for a trial court to be The decision in Johnson was based on Rule 16.5(a), the predecessor to current Rule 16.6(a). The language of both rules is identical. 9 justified in denying a prosecutor s motion to dismiss. See U.S. v. Cowan, 524 F.2d 504, 513, 515 (5th Cir. 1975) (reversing trial court s denial of prosecutor s motion to dismiss and explaining that while the trial judge had the discretion to consider whether dismissal was clearly contrary to the public interest, nothing in the record overcame the presumption acted in good faith); U.S. that the prosecutors had v. Dupris, 664 F.2d 169, 174-75 (8th Cir. 1981) (reversing denial of motion to dismiss because there was no finding of bad faith regarding government s claim that the evidence needed for conviction had been lost or misplaced and the memories of clear witnesses had faded; the court also noted that there was no assertion of prosecutorial harassment or that the motion to dismiss was prompted by considerations clearly contrary to the public interest); U.S. v. Hamm, 659 F.2d 624, 630 (5th Cir. 1981) (reversing denial of motion to dismiss because there was no evidence that the prosecutor was motivated by any considerations other than his evaluation of the public interest when prosecutor moved to dismiss the indictments of the principal informants and witnesses against leaders of a large drug- smuggling conspiracy). ¶18 Here, the trial court determined the State failed to establish good cause to dismiss the 2004 indictment. In making this determination, the court noted the State delayed in filing its motion until after the Defendant was tried and convicted of 10 felony murder. representations In of addition, the the State, that court found, there was based no on the evidence to support a charge of premeditated murder. ¶19 However, the State avers it did not anticipate the court s ruling based on Styers, and by the time the court issued its ruling, it was too late to obtain a new indictment in the middle of trial.10 Once the court granted Defendant s motion for new trial, the State attempted to address the court s ruling by obtaining a new indictment. In addition, the State avowed that it was not until after hearing the statements of the jurors that it concluded that there was sufficient Defendant intentionally murdered his son. evidence to prove After reaching this conclusion, the State obtained a new indictment that included premeditated murder because the 2004 indictment did not include a charge for premeditated murder and the court had precluded the State from presenting any evidence concerning intentional murder based on the State s felony murder theory. ¶20 Under these circumstances, the State established good cause to dismiss the 2004 indictment and file a new criminal charge for premeditated murder. P.3d at 702. Tsosie, 171 Ariz. at 685, 832 It was thus error for the court to deny the State s 10 We note the State did not seek to obtain special action relief from the ruling. 11 motion to dismiss. See State v. Mieg, 225 Ariz. 445, 449-50, ¶¶ 16-22, 239 P.3d 1258, 1262-63 (App. 2010). ¶21 We do not reach the issue of whether good cause would have been lacking if the trial court had determined the State attempted to dismiss the 2004 Indictment in bad faith or to avoid the speedy trial provisions of Rule 8. The court did not make any such findings in the record, and if it desires to make such findings, it may amend its findings or hold further hearings on this matter. ¶22 Accordingly, we reverse the trial court s order denying the state s motion to dismiss. _/S/___________________________ ANDREW W. GOULD, Judge CONCURRING: /S/_________________________________ MICHAEL J. BROWN, Presiding Judge /S/_________________________________ DONN KESSLER, Judge 12

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