STATE v. LAMBERT

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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, Appellee, v. JULIUS TURNER LAMBERT, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 11-0118 DIVISION ONE FILED: 06/21/2012 RUTH A. WILLINGHAM, CLERK BY: sls DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-006009-001 DT The Honorable Joseph Kreamer, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Matthew H. Binford, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Lindsay P. Abramson, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 Julius Turner Lambert appeals resisting arrest, a Class 1 misdemeanor. follow, we affirm Lambert s conviction his conviction for For the reasons that and the resulting imposition of probation. FACTS AND PROCEDURAL BACKGROUND ¶2 Sheriff s deputies responded to a reported incident between Lambert and another person. 1 Lambert allegedly refused to and obey the commands of one deputy struggled with During the struggle, Lambert allegedly choked the deputy. also resisted attempts to place him under arrest. him. He The State charged Lambert with aggravated assault of the deputy pursuant to Arizona Revised Statutes ( A.R.S ) section 13-1204(A)(8)(a) (2009) (assault of a peace officer engaged in official duties). The offense was charged as a Class 5 felony rather than a Class 6 because the State alleged Lambert caused physical injury to the deputy. ¶3 See A.R.S. § 13-1204(B)-(C). Just prior to trial, the superior court granted Lambert s motion in limine to exclude evidence that before the deputies arrived, Lambert had choked the person who called 911. The court held the State could introduce evidence that there was a dispute between Lambert and the other person and that the 1 We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). 2 other person warned that attacked or called if 911 the because State assaulted of the introduced the person dispute. evidence who called The that 911, court Lambert the court likely would grant a mistrial. ¶4 Seven sentences into her opening statement, the prosecutor told the jury that while en route to the scene, the deputy learned that he had a lawful basis to arrest [Lambert]. Lambert moved for a mistrial, arguing the statement violated the court s ruling on the motion in limine. The superior court found the statement violated its ruling and was irrelevant and prejudicial. The court observed that a curative instruction would not be sufficient; therefore it declared a mistrial. ¶5 Less than four mistrial, the State obtained based the same on hours a incident. after the second While court granted indictment the State the of Lambert again charged Lambert with aggravated assault of the deputy pursuant to A.R.S. § 13-1204(A)(8)(a), it did not allege Lambert caused physical injury to the deputy, rendering the offense a Class 6 felony. See A.R.S. § 13-1204(B). The State further charged Lambert with resisting arrest pursuant to A.R.S. § 13-2508(A)(1) (2009), also a Class 6 felony. The superior court later dismissed the first case and the parties proceeded to trial on the second case. ¶6 At the completion of the second trial, the jury acquitted Lambert of aggravated assault but found him guilty of 3 resisting arrest. Class 1 The superior court designated the offense a misdemeanor pursuant to A.R.S. § 13-604(A) (2009), placed Lambert on six months unsupervised probation and allowed him to return to his home in Texas. have jurisdiction pursuant to Lambert now appeals. Article 6, Section 9, of We the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033 (West 2012). 2 DISCUSSION A. The Motion to Dismiss Based on Double Jeopardy. ¶7 Lambert first argues the superior court erred when it denied his motion to dismiss the second case based on double jeopardy. Lambert argues the prosecutor intentionally violated the ruling on the motion in limine during the first trial so that she could reindict Lambert and add the charge of resisting arrest. Lambert argues the prosecutor did this to punish him for declining a plea offer and because the prosecutor realized she had a weak case. ¶8 We review questions of double jeopardy de novo. State v. Moody, 208 Ariz. 424, 437, ¶ 18, 94 P.3d 1119, 1132 (2004). As a general rule, if the defendant successfully moves for or consents to a mistrial, retrial is not barred on double jeopardy grounds. State v. Minnitt, 203 Ariz. 431, 437, ¶ 28, 55 P.3d 2 Absent material revision after the date offense, we cite a statute s current version. 4 of an alleged 774, 780 (2002). Double jeopardy will bar a retrial, however, if (1) the mistrial is the result of improper conduct by the prosecutor, (2) the conduct was not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal ; and (3) the prosecutor s conduct causes prejudice that can be cured only by a mistrial. Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). The prosecutor s conduct must be so egregious that it raises concerns over the integrity and fundamental fairness of the trial itself. Minnitt, 203 Ariz. at 438, ¶ 30, 55 P.3d at 781. ¶9 The superior court did not err by denying the motion to dismiss based on double jeopardy. When a court grants a mistrial based on the actions of a prosecutor, double jeopardy does not bar retrial when the record demonstrates the prosecutor did not engage in intentional misconduct or demonstrates that the defendant was not subjected to harassment or oppression. Pool, 139 Ariz. at 105, 677 P.2d at 268 (quoting State Wright, 112 Ariz. 446, 450, 543 P.2d 434, 438 (1975)). v. The superior court in this case found the prosecutor did not act intentionally or purposefully. The 5 court further found the prosecutor s actions were not part of any agenda to obtain a mistrial and reindict Lambert, but were, at most, negligent. The superior court is in the best position to judge the circumstances surrounding a mistrial, see State v. Koch, 138 Ariz. 99, 101, 673 P.2d 297, 299 (1983), and the credibility of the prosecutor s explanations was a matter for that court to decide, see Pool, 139 Ariz. at 108 n.9, 677 P.2d at 271. The record its does not clearly demonstrate the court erred in assessment. ¶10 Further, the record does not show the State subjected Lambert to harassment or oppression. Again, the court found the prosecutor did not act intentionally. Further, the State abandoned the charge of aggravated assault as a Class 5 felony and reindicted Lambert for aggravated assault as a lesser Class 6 felony. Reducing a charge after a mistrial is not harassment or oppression. Regarding the new charge of resisting arrest, Lambert knew months before the first trial the State might add resisting arrest to the charges he faced if he did not accept the State s plea offer. To follow through with a threat to bring additional charges if a defendant does not accept a plea offer does not violate the defendant s due-process Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978). 6 rights. B. The Motion to Dismiss Based on Vindictive Prosecution. ¶11 Lambert also contends the superior court erred when it denied a second prosecution. motion to dismiss based on vindictive Lambert again argues the State reindicted him to punish him for declining a plea offer and was, therefore, acting vindictively. We review the decision of whether to dismiss a case for vindictive prosecution for abuse of discretion. State v. Mieg, 225 Ariz. 445, 447, ¶ 9, 239 P.3d 1258, 1260 (App. 2010). ¶12 Due process prevents a prosecutor from subjecting a defendant to more severe charges as punishment for exercising his constitutionally protected rights. Id. at ¶ 10. A presumption of vindictiveness arises if the defendant shows the circumstances establish vindictiveness. (quotation applies, Id. omitted). the court a at 447-48, To must realistic ¶ determine consider facie showing that a 239 whether all Id. at 448, ¶ 15, 239 P.3d at 1261. prima 11, likelihood of P.3d at this presumption relevant 1260-61 circumstances. If the defendant makes a prosecutor s decision was more likely than not attributable to vindictiveness, the State must overcome the presumption by presenting objective evidence that justified the prosecutor s action. omitted). 7 Id. at ¶ 12 (quotations ¶13 The superior court did not abuse its discretion by denying Lambert s motion. prosecutor invoking sought his to right There is no objective evidence the punish to a Lambert trial. for refusing After plea and mistrial, the the a prosecutor did not subject Lambert to more severe charges, but abandoned the more serious offense and indicted Lambert for a lesser Class 6 felony. resisting arrest, Although the State added the charge of Lambert knew months before trial that the State might do so if he rejected the plea offer and, as noted above, the State could do so without violating due process. Bordenkircher, 434 U.S. at 364-65. See As for the presumption of vindictiveness, The 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 a presumption of vindictiveness certainly is not warranted. United States v. Goodwin, 457 U.S. 368, 384 (1982). ¶14 Further, the State is entitled to respond to pretrial rulings and other changes in the procedural posture of a case by reevaluating its case and changing strategy. 449, ¶ 19, 239 P.3d at 1262. Mieg, 225 Ariz. at Here, the prosecutor explained to the superior court that the State reevaluated the case after the mistrial and appropriate concluded charge based that the on the 8 lesser evidence. offense was Further, an the prosecutor explained that the State did not add the count of resisting arrest prior to negotiations were ongoing. the first trial because plea She explained the State chose to correct this mistake prior to retrial. [I]t would ill-serve the public good to penalize the state when a prosecutor chooses not to bring all conceivable charges at the outset. Id. at ¶ 18. ¶15 Finally, Lambert argues the superior court improperly intertwined the double jeopardy and vindictiveness doctrines discussed above when it found that if the prosecutor did not intentionally cause the mistrial, a prosecutor later acted vindictively. court cannot find the When read as a whole and in context, however, the court s comments do not demonstrate it held that, as a matter of law, vindictiveness may not exist when the prosecutor has not acted intentionally. Further, the record demonstrates the court knew otherwise and correctly applied the law. At the vindictiveness, hearing the court on the explained motion it to dismiss for would consider the State s conduct as a whole, including the State s post mistrial conduct. based The court further noted it could find vindictiveness solely on conduct that occurred after the prosecutor caused the mistrial. 3 3 Lambert refused to also give argues the a Willits superior court erred when it instruction regarding missing 9 CONCLUSION ¶16 We affirm Lambert s conviction and the resulting imposition of probation. /s/ DIANE M. JOHNSEN, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ PHILIP HALL, Judge photographs of the deputy s injuries. See State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). We need not address this argument because Lambert s acquittal on the aggravated assault charge renders this issue moot. 10

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