GITTENS v. HON KREAMER/STATE

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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 ELDRIDGE GITTENS (1); JASON NEIL NOONKESTER (2); JUSTIN MCMAHAN (3); ZACHARY BAXTER (4); JOSE ALEJANDRO ACUNA (5); RUDOLPH JOHN CANO, JR. (6); ABEL HIDALGO (7); DENNIS LEVIS (8); JONATHAN RAY COLE (9); CRAIG DEVINE (10) RYAN WILLIAM FOOTE (11); DARNELL RUENA JACKSON (12); JAMES CLAYTON JOHNSON (13); THOMAS RILEY (14); JASPER PHILLIP RUSHING (15); JESUS BUSSO-ESTOPELLAN (16); MANUEL ANTONIO GONZALES (17), ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Petitioners, ) ) ) v. ) ) ) THE HONORABLE JOSEPH KREAMER, ) Judge of the SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of MARICOPA, ) ) Respondent Judge, ) ) STATE OF ARIZONA ex rel. WILLIAM ) MONTGOMERY, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 10/29/2013 RUTH A. WILLINGHAM, CLERK BY: mjt No. 1 CA-SA 13-0254 DEPARTMENT B Maricopa County Superior Court Nos. CR2010-007912-002 CR2011-138281-001 CR2012-139607-001 CR2012-007399-001 CR2011-140108-001 CR2009-160953-001 CR2011-005473-001 CR2011-008004-001 CR2011-151833-001 CR2010-168096-001 CR2011-150239-001 CR2010-007912-001 CR2010-048824-001 CR2011-008004-002 CR2010-007882-001 CR2011-133622-001 CR2012-154880-001 DT(1) DT(2) DT(3) DT(4) DT(5) DT(6) DT(7) DT(8) DT(9) DT(10) DT(11) DT(12) DT(13) DT(14) DT(15) DT(16) DT(17) DECISION ORDER This matter was considered by Presiding Judge Peter B. Swann and Judges Maurice Portley and Samuel A. Thumma during a regularly scheduled conference held on October 22, 2013. After consideration, and for the reasons that follow, IT IS ORDERED in the exercise of its discretion, the court declines special action jurisdiction. I. Procedural Background. Each Petitioner is facing a murder charge in Arizona Superior Court, Maricopa County, and in each case the State has filed a notice seeking the death penalty. No Petitioner has started trial; no Petitioner has been found guilty of murder and the death penalty has not been imposed on any Petitioner. Petitioners moved to dismiss the death penalty allegations, claiming Arizona Revised Statute (A.R.S.) section (2013) 1 13-751 - Arizona s death penalty statute -- is unconstitutional because it: (1) fails to genuinely narrow the class of persons eligible for the death penalty; and (2) violates equal protection guarantees, given different approaches to the death penalty by the various counties in Arizona. Petitioners requested an evidentiary hearing on the motion. The superior court received extensive briefing, including supplemental briefing on multiple issues related to the original motion, and received and considered extensive filings and exhibits relating to the motion. The superior court 1 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 2 heard oral argument in January 2013 and May 2013. In considering the motion, the court assumed all facts alleged by Petitioners were true. Having considered these materials, the superior court denied Petitioners denied request Petitioners for motion. The an evidentiary court rejected hearing the and narrowing argument, noting this argument has been previously rejected by the Arizona Supreme Court in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991) and State v. Hausner, 230 Ariz. 60, 89, n.9, 280 P.3d 604, 633 n.9 (2012). The court rejected the equal protection argument, noting Petitioners made no argument that the State has acted with discriminatory intent as to any of the Petitioners and that, in State v. Ovante, 231 Ariz. 180, 185-86, 291 P.3d 974, 979-80 (2013), the Arizona Supreme Court held that a showing that defendants in Maricopa County are more likely to defendants receive in the other death penalty counties did than not similarly-situated constitute an Equal Protection violation. Petitioners filed this special action, claiming the superior court (1) abused its discretion in denying the request for an evidentiary hearing; (2) erred in rejecting the narrowing argument and (3) erred in rejecting the equal protection argument. The State filed a response opposing the petition. 3 II. Special Action Jurisdiction. Special action jurisdiction is highly discretionary, and is generally disfavored when used to consider the denial of a motion to appropriate dismiss. where Special there is an action equally jurisdiction plain, is not speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). Applying these principles, as noted by the State: The petition seeks to bar imposition of the death penalty but a jury has not even found Petitioner[s] guilty of first degree murder. And even if a jury does find [them] guilty of first degree murder, it may decline to impose the death penalty. And even if a jury does impose the death penalty, appeal is mandatory in capital cases so Petitioner[s] can raise [their] attacks on the constitutionality of Arizona s death penalty statute on appeal. In addition, the issues Petitioners raise may be obviated before trial (through plea agreements or otherwise). Accordingly, as to each Petitioner, accepting special action jurisdiction at this time could result in addressing thorny legal issues on a situation that may never occur. Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 536, ¶ 13, n.6, 278 P.3d 310, 314 n.6 (App. 2012) (citation omitted; discussing ripeness and standing). Moreover, should the death sentence be imposed on any of the Petitioners, that individual retains an equally plain, speedy, and adequate remedy by way of direct appeal to the Arizona Supreme Court. See A.R.S. § 13-4031; Ariz. R. Crim. P. 31.2; Neary v. Frantz, 4 141 Ariz. 171, 177, 685 P.2d 1323, 1329 (App. 1984) ( A remedy does not become inadequate merely because more time would transpire by pursuing a conventional action. ). Addressing the lack of an evidentiary hearing, Petitioners claim appellate review is illusory if there is no adequate record made in the superior court. Petitioners, however, raised two constitutional issues and made substantial filings included with in approximately the superior Petitioner s 560 court. A appendix pages. portion with Similarly, of this the those filings court total superior court considered the documents Petitioners filed -- both the actual exhibits and summaries of those exhibits -- and assumed as true all of Petitioners factual submissions when ruling on the motion. Petitioners have failed to show how this record would make any appeal illusory. For all of these reasons, this court declines special action jurisdiction. ___ /S/_________________________ SAMUEL A. THUMMA, Judge 5

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