State of Arizona v Andre Lamont Minnitt
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FILED SUPREME COURT OF ARIZONA En Banc ) STATE OF ARIZONA, OCT 112002 NOELKO~SSAINT CLERK SUPREME COURT Arizona Supreme Court No. CR 99 0243 AP Appellee, ) v. Pima County Superior Court No. CR 40086 ) 0 P I N I 0 N ANDRE LAMONT MINNITT, Appellant. Appeal from the Pima County Superior Court No. CR 40086 The Honorable Richard D. Nichols, Judge VACATED WITH INSTRUCTIONS Janet A. Napolitano, Arizona Attorney General by Kent Cattani, Chief Counsel Capital Litigation Section Dawn Northup, Assistant Attorney General Attorneys for Appellee Carla Ryan Attorney for Appellant Phoenix Tucson * I J 0 N E S, Chief Justice ¶1 three The counts defendant, of first Andre Lamont Minnitt, degree murder and was charged seven counts of with armed robbery, aggravated robbery, and burglary, all stemming from events at the El Grande Market in Tucson the night of June 24, 1992. In 1993, Minnitt was tried and convicted of the three murder counts and the seven non-homicide counts. He was sentenced to death for the murders. reversed the convictions In 1996, this case for a new trial due to and sentences and remanded coercion. State v. McCrimmon/Minnitt, 187 Ariz. 169, 927 P.2d 1298 (1996) the court juror He was tried again in 1997 in a proceeding that ended in . a mistrial because the jury was unable to reach a verdict. tried a third time in April 1999. He was There, a jury found him guilty of all charges and the trial judge imposed death sentences for the three murder convictions and life imprisonment for robbery, aggravated robbery, and burglary convictions. the armed Because of the death sentence, direct appeal to this court is mandatory under Rules 26.15 Procedure. article and Rule 31.2(b) the Arizona Rules of Criminal We have jurisdiction pursuant to Arizona Constitution VI, section section 13 4031 5.3, (Supp. and Arizona Revised Statutes (A.R.S.) 2001) I. ¶2 of Issue Presented Minnitt claims his third trial should have been barred by principles of double jeopardy because of prosecutorial misconduct 2 II at the two previous trials. Specifically, he argues that because the prosecutor engaged in egregious, intentional misdeeds aimed at prejudicing the jury and avoiding an acquittal in trials one and two, double jeopardy should apply here. ¶3 In response, the state argues that double jeopardy is not implicated, that prosecutorial the 1997 misconduct, hung and jury was that the not connected prosecutor to the did not act deliberately to avoid an acquittal. ¶4 We conclude that Arizona s constitutional against double jeopardy should have barred Minnitt s protection 1999 retrial because in both the 1993 and 1997 trials the prosecutor engaged in extreme misconduct prejudicial, system. that he knew was grossly improper and highly both as to the defendant and to the integrity of the Moreover, the trial judge found and the record substantiates that the prosecutor did so with knowing indifference to the danger of mistrial or reversal, if not a specific intent to cause a mistrial. II. A. The Facts Investigation of The El Grande Homicides ¶5 Between 9:30 p.m. and 10:00 p.m. on June 24, 1992, Queen Esther Ray loaned Christopher McCrimrnon a 1977 Plymouth automobile that belonged to her boyfriend, David Durbin. McCrimmon car money. asked McCrimmon to borrow the left with Minnitt 3 She testified that for an hour to pick up and a third person some known as Martinez. Ray later identified Martinez as Martin Soto-Fong. She testified that all three men returned about an hour later without the car. ¶6 At dispatched approximately to the El 10:15 Grande Market p.m., in Tucson response There, they found the bodies of three victims: to police a 911 were call. the store manager, the manager s uncle, and an employee. All three died from multiple gunshot the market police wounds. Three abandoned Plymouth. David Durbin. blocks from found an The car was later identified as belonging to Christopher McCrimmon s fingerprint was found on the outside of the driver s side window. ¶7 Tucson Police Detective Joseph Godoy was assigned as the lead detective on the case. On August 31, 1992, Godoy received a phone call from an unknown male caller who told him that a black male named McKinney and another individual nicknamed Cha-Chi were involved in the El Grande Market murders. Later that evening, Godoy met with Sergeant Zimmerling, who informed Godoy that he had received a tip from a confidential informant that a black male named McCrimmon and a Mexican male named Martin Soto, also known as Cha Chi, were involved in the murders. With this Godoy conducted a records check on McCrimmon, criminal history. which revealed his Further investigation by Godoy Cha-Chi, Martin Soto, information, revealed that and Martin Fong were names used by the same person, and that Martin Fong was a former employee of the El Grande 4 Market. ¶8 During this time period, Tucson Detective investigating a late August 1992 restaurant robbery. Fuller was Christopher McCrimmon became a potential suspect after forensic evidence linked him to that crime scene. associate of McCrimmon s, restaurant robbery. September 1, 1992. a suspect in Fuller discovered that Andre Minnitt, an may also have been involved in the Fuller communicated this information to Godoy At that time, McCrimmon was already considered the El Grande Market homicides, and with the additional information connecting Minnitt to McCrimmon, Godoy also considered Minnitt a possible suspect. ¶9 On September 2, 1992, Godoy assisted Fuller in arresting McCrimmon and Minnitt for the restaurant robbery. while both were in custody, Godoy questioned each of them about involvement in the El Grande homicides. Thus, as of September 2, The same day, 1992, Both denied involvement. Soto-Fong, McCrimmon, and Minnitt had been interviewed by police and were suspects in the El Grande crimes. ¶10 prison. In late August 1992, one Keith Woods was released from Several days later, he was arrested on drug charges. He was already a three-time felon, and possessing drugs was a parole violation possible twenty five sentence. exchange subjecting him to a Facing this, for dismissal Woods year prison offered to become an informant of the drug charges. 5 Woods later in stated that on the McCrirnmon, day of his release from prison, he was met by who professed participation in the El Grande murders. He further testified that later the same day, he and McCrimmon went to Minnitt s apartment where Minnitt with details interview of the El Grande and McCrimmon provided him crimes. with Godoy on September 8, Following an untaped Woods was transferred to a bugged room where, on tape, he implicated Minnitt, McCrimmon, and a third person, Cha-Chi, in the El Grande homicides. The three were subsequently charged with the murders. B. Procedural History ¶11 Soto Fong was tried separately in 1993 and, based on direct evidence of his participation in the El Grande murders, was convicted and sentenced to death. affirmed by this court. P.2d 610 (1996) 1993, and Minnitt coercion, . they, and His conviction and sentence were State v. Soto Fong, 187 Ariz. 928 Minnitt and McCrirnmon were tried jointly, also in too, McCrimmon were convicted. convictions were As noted, reversed however, due and the case was remanded for a new trial. Minnitt and McCrimmon were retried separately. began first, 186, resulting in a hung jury. the to juror In 1997, Minnitt s retrial Days later McCrirnmon was tried and acquitted. C. ¶12 Godoy s Misdeeds and Peasley s Misconduct Before discussing the actual misconduct in this case, we recount the context in which it occurred. 6 Deputy County Attorney Kenneth Peasley conducted the 1993 Soto-Fong trial and the 1993 and 1997 trials of Minnitt and McCrimmon. Minnitt s 1999 trial. He did not participate in In all three Minnitt trials and in both McCrimmon trials, the state s case depended heavily on Keith Woods credibility. Importantly, as of September 2, the police had identified Soto-Fong, McCrimmon, and Minnitt as suspects in the El Grande crimes and had interviewed them. police had yet to interview anyone But according to Godoy, who could provide evidence linking any of the three to the crimes. interviewed until Minnitt September 8, interviews. knowledge of Godoy interview with Woods. Woods was not six days after the McCrimmon and claimed any involvement direct to have by McCrimmon received his and Minnitt first from his This was the information the police were seeking--that McCrimmon and Minnitt had implicated themselves in the murders and that a witness would so testify. ¶13 Woods credibility was tenuous. He was a convicted felon and drug addict who entered into an agreement with the state to provide testimony to avoid a lengthy prison sentence. had no plausible explanation interview with Woods. why Godoy The defense conducted The state the untaped strategy in the Minnitt and McCrirumon trials was to show that Godoy was the source of Woods information case, and information about that Minnitt s during to Woods. the and McCrimmon s untaped If Godoy 7 was involvement interview, indeed the he in fed source, the that Woods testimony would not have helped the state. Similarly, without Woods, the state s case would be significantly weakened because no direct or physical evidence connected Minnitt to the crime, and the credibility of the remaining witnesses was questionable. 1. ¶14 The 1993 Joint Trial of Minnitt and McCrimmon In 1993, Peasley began to lay the foundation for Godoy s testimony. His questioning of Godoy and his arguments to the jury indicate that he knew the case hinged on Woods credibility. His purpose, clearly apparent, was to destroy the defense s claim that Godoy himself, not the suspects, was the source, and that Godoy had fed Woods the three names during the untaped interview. the trial possible he argued that Woods sources themselves, ¶15 for Woods was believable information Throughout because were the the only defendants not Godoy. In his opening statement to the jury, Peasley described Godoy s investigation, stating that the detective did not know that Soto-Fong had worked at the El interviewed Woods on September 8. true, Grande Market until Godoy Contrary to what he knew to be Peasley insisted that the police did not have the names of Soto-Fong, McCrirrimon, or Minnitt until after Godoy and Woods met on September 8. During his direct examination of Godoy, Peasley elicited testimony that Godoy had gone to the El Grande Market with the name of Martin Soto-Fong only after talking with Keith Woods. The record is replete with evidence of Peasley s 8 full awareness that this line of testimony was utterly false. ¶16 On redirect examination, Peasley continued to ask questions designed to mislead the jury regarding when and how Godoy discovered the defendants names. Peasley: And is it fair to say that essentially the information that you began working with when Mr. McCrimmon and Mr. Minnitt and Martin Fong became suspects would have been after the time that you talked to Keith Woods in this case? Godoy: Yes. Godoy was later recalled, whereupon Peasley continued: Peasley: Sir, when was the first time you became aware personally that a former employee may have been involved in the El Grande homicide? Godoy: When I spoke with Keith Woods on September the 8 of 1992. ¶17 In his closing argument, Peasley reinforced Godoy s false testimony by stating, I told you at the beginning of the case, folks, that there would be no less than four major reasons for why you would believe Keith Woods and why you would find that these Defendants are guilty. ¶18 He continued this theme in his rebuttal statement: When you look at Mr. Woods--and I would invite you to do it--if you go back in the jury room, you can look at the exhibits all you want. The simple fact of the matter is that when you go back into the jury room, answer the question about whether or not you believe Keith Woods, about what he had to say in the case. Because if you do, the case is over, the trial is over and you can start signing the verdicts. Because if you believe Keith Woods testimony about 9 his conversations, both of these defendants have confessed to every one of these offenses. And I would ask you, again, as I did in closing arguments -or, excuse me, in opening statement go through and talk about it. 2. ¶19 Minnitt s 1997 Retrial Peasley Woods continued credibility in to rely Minnitt s on 1997 Godoy to retrial. bolster During Keith direct examination of Godoy, Peasley asked a series of questions designed to erase any doubt that the source of Godoy s information could have been anyone but Woods. Peasley Q: When you first sat down and talked with Mr. Wood [sic] on September 8 of 1992, had you in your investigation come up with the name Keith Wood ? Godoy A: No, Q: Sir. Excuse me. McCrimmon ? Had you come up with the name Chris A: No. Q: Had you come up with the name Andre Minnitt ? A: No, Q: Had you come up with the name Cha-chi ? A: No. Q: sir. Had you come up Martin Soto Fong ? A: with the name Martin Fong or No. Q: The first time you heard of any of those three names would have been with the conversation with Keith Wood on September 8, 1992? A: Yes. -10- Q: Did you in any way suggest to him what he ought to say or what he ought to tell you? A: I did not, no. The 1997 trial ended in a mistrial because the jury failed to reach a verdict. 3. ¶20 No explanation or reason was given. McCrimmon s 1997 Retrial McCrimmon s 1997 retrial began one week after Minnitt s trial ended in a hung jury. In a pretrial hearing just prior to McCrimmon s retrial, Godoy s false testimony in Minnitt s trial one week earlier discovered, and Peasley s perhaps knowledge inadvertently, of when the Peasley falsehood were asked the trial judge for guidance on introducing McCrimmon s involvement in the restaurant robbery and whether Godoy could refer to confidential information in his presentation of that evidence. the discussion, case, Detective In the course of Peasley stated that because of the Godoy gets from Detective Fuller [restaurant] the name of Minnitt as associated with McCrimmon and starts wondering if they are doing [the restaurant] together . . . . The conversation between Godoy and Fuller took place September 1, a full week before Godoy s interview with Woods. Godoy s and Minnitt took place September 2. interviews with McCrirnmon It thus became apparent that Peasley had misled the Minnitt jury and that he was aware Godoy had associated Minnitt with McCrimmon prior interview with Woods. to Godoy s September 8 In response, McCrimmon s counsel submitted -11- a list of Godoy s false statements made in Minnitt s trial the week before and informed the court that he planned to impeach Godoy on his prior false testimony. ¶21 Godoy, Knowing that McCrimmon s defense counsel would Peasley, during direct examination, accounting of his investigation. impeach had Godoy provide an Godoy explained that his previous false testimony was derived from his fear that discussing anonymous sources could have resulted in a mistrial. since this, I have never been able to about confidential informants, [I]n prior hearings legally testify in court and that s why I said no. during redirect, Godoy stated, Then, Basically if I go into testimony that I received information from a confidential informant before I testify, there is a chance that that s going to be a mistrial in this case, so I didn t want to take a chance of making a mistake and having a mistrial. ¶22 In response, McCrimmon s defense counsel aggressively cross-examined Godoy by having him recount the false testimony he had given the week before in Minnitt s trial. Godoy explained Peasley s involvement and knowledge and gave a detailed accounting of his Woods. point own investigation prior to his September 8 meeting with Defense counsel also reviewed the Minnitt transcripts to out that Godoy informant information. was never asked to reveal confidential Having learned of the false testimony, jury acquitted McCrimmon of all charges. -12- the 4. ¶23 Minnitt s Post-Trial Motion After McCrimmon s 1997 trial and following the not guilty verdict in which Godoy s false testimony had been revealed, Minnitt moved to dismiss the charges against him, asserting prosecutorial misconduct introduction evidence based through on Peasley s witness Godoy knowing in the 1993 Minnitt s 1997 trial. The motion was denied. to double joint dismiss based on jeopardy, of trial false and in Minnitt then moved asserting prosecutorial misconduct in eliciting false testimony from Godoy. Following an evidentiary hearing, the trial court found that the prosecutor had engaged in misconduct testimony in front of by posing the questions jury, that the that elicited false false testimony was helpful to the state s case, and that it could have been corrected by the prosecutor. argument that the The trial state s court rejected the double jeopardy conduct was intended to further an improper purpose, but nevertheless found the conduct occurred with known indifference to a significant danger of mistrial or reversal. Despite the finding of serious misconduct, the motion to dismiss, the trial court denied concluding the mistrial resulted from the jury s inability to reach a verdict, rather than from Peasley s and Godoy s misdeeds. ¶24 Following the trial court s denial of the motion to dismiss, Minnitt filed a petition for special action to this court. Special action jurisdiction is always discretionary. -13- We declined jurisdiction, knowing that, should Minnitt be convicted in the third trial, this court would then have the opportunity to conduct appellate review on a complete record. 5. ¶25 Minnitt s 1999 Retrial At Minnitt s 1999 retrial, Peasley did not participate and the prosecution altered its approach by not calling Godoy. The defense questioned him about his previous testimony and his role in the investigation. On did call Godoy, cross-examination, prior Minnitt Godoy however, and vigorously stated that his false testimony in two trials was prompted by knowledge that information from confidential sources would be hearsay and inadmissible. gave no other justification for having given false He testimony in either previous trial. III. ¶26 Discussion The state argues that Arizona s jurisprudence requires that a claim of double jeopardy based on prosecutorial misconduct be found without merit in the absence of a connecting link between the misconduct and the basis for mistrial. The state has mischaracterized our jurisprudence. ¶27 The double jeopardy clause of the Fifth Amendment protects a criminal defendant from multiple prosecutions for the same offense. United States v. Dinitz, 424 U.S. 600, 606 (1976) The Arizona Constitution provides the same protection in article 2, section 10, stating that no person shall be twice put in jeopardy -14- for the same offense. prosecutions, As part of the protection against multiple the clause protects a defendant s have his or her trial valued right completed by the tribunal first Oregon v. Kennedy, 456 U.S. 667, 673 (1982) to assigned. ( one of the principal threads making up the protection embodied in the double jeopardy clause is the right of the defendant to have his trial before the Court, first jury empaneled 139 Ariz. 98, 109, 677 to try him ); P.2d 261, Pool 272 completed v. (1984) Superior It . also protects a defendant from multiple attempts by the government, with its vast offense, resources, thereby to convict subjecting him an to individual for embarrassment, an alleged expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . Green v. United States, . 355 U.S. 184, 187 (1957). ¶28 Nevertheless, jeopardy clause are the not protections absolute. As afforded by a general the rule, double if the defendant successfully moves for or consents to a mistrial, retrial is not barred on double jeopardy grounds. Dinitz, 424 U.S. at 607; see also United States v. 470, Jorn, 400 U.S. 484 (1971) (double jeopardy principles do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error ); Kennedy, 456 U.S. at 672-73 (the circumstances surrounding termination of the first trial dictate -15- whether the double jeopardy clause bars retrial) for the rule permitting re-prosecution is The rationale . that either on his own motion or by his consent, the defendant, has agreed to forego his right to a final determination by the first tribunal. Dinitz, 424 U.S. at 607 08. ¶29 There are circumstances, however, jeopardy clause will bar re-prosecution. in which the double Intentional and pervasive misconduct on the part of the prosecution to the extent that the trial that is structurally impaired is one example. retrial is barred when the prosecutor In Pool we held engages in improper conduct that is not merely the result of legal error or negligence, but constitutes intentional conduct that the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference Pool, Pool which 139 Ariz. was guarantee based to be a significant cannot be cured by means at 108 09, on resulting danger of [ ] and the conduct causes prejudice to the mistrial or reversal defendant to the free of a mistrial. 677 P.2d at 271 72. view from short that a Our decision in defendant s multiple trials constitutional would be severely impaired by the prosecutor s intentional misconduct. ¶30 between In deciding simple Pool, we prosecutorial drew error, an important such as distinction an isolated misstatement or loss of temper, and misconduct that is so egregious that it raises concerns over the integrity and fundamental fairness -16- of the trial Prosecutorial itself. Id. misconduct at 105 07, that 677 permeates P.2d at the 268 70. process and intentionally destroys the ability of the tribunal to reach a fair verdict must necessarily be remedied. ¶31 The examination misconduct in Pool of the defendant was extreme. regarding the theft During at cross- issue, the prosecutor s questions ranged from irrelevant and prejudicial to abusive, argumentative, and disrespectful. Permanent prejudice became clear by reason of the prosecutor s persistence in improper cross examination. impossible to unanimously that Ultimate achieve. the fairness Given this prosecutor s in the trial conduct, purposes, we apparent became concluded from the record, were to avoid an acquittal, prejudice the jury, and obtain a conviction reversal. with indifference Id. at 109, to the 677 P.2d at 272. danger of mistrial Accordingly, or the double jeopardy doctrine barred retrial. ¶32 Consistent with decision, this determined court these principles, that, even in a more recent in the absence of a declared mistrial, double jeopardy bars retrial in situations where the trial became patently unfair and the conviction was obviously obtained Jorgenson, 1 by intentional 198 Ariz. 390, prosecutorial 10 P.3d 1177 misconduct. (2000) . State v. The defendant s Jorgenson was a petition for special action that arose from our reversal of the convictions and sentences imposed on one Alex Hughes by reason of prosecutorial misconduct. See State v. Hughes, -17- motion for mistrial based on the prosecutor s misdeeds was denied. On appeal, we reversed and remanded the case because the prosecutor had engaged in knowing and intentional misconduct. 91, 10 P.3d at 1177 78 ¶2. Id. at 390- We stated, [t]he misconduct includes ignoring the facts [and] relying on prejudice It was a dishonest way to represent the State , and it was especially dishonest where the evidence of insanity was substantial, and where the State had no evidence that [Defendant] had fabricated an insanity defense. The state overwhelmed Defendant s insanity defense, but it did not do so with evidence; it did so with prosecutorial misconduct. . . . . Id. Ariz. . On remand, . . omitted) 86 88, 969 P.2d 1184, ¶33 . . . . (internal citations 72, . . . . the (quoting State v. 1198 1200 ¶9161 73 defendant moved to Hughes, (1998) dismiss on jeopardy grounds and the trial court granted the motion. then sought special action relief, claiming 193 the double The state defendant was entitled only to a new trial, not dismissal. ¶34 On review of the special action, we reasoned it would be contrary to meaningful mistrial erroneous established legal and double distinction between re-prosecution denial jeopardy of a after mistrial. principles re-prosecution reversal This on court to draw a following a appeal said, from the Surely a defendant whose mistrial motion was erroneously denied, as in the present case, should have the same constitutional protection as one whose motion was correctly granted, 193 Ariz. 72, 969 P.2d 1184 (1998) -18- as in Pool. Id. at 392, 10 P.3d at 1179 ¶7. ¶35 engages Thus, in where egregious a prosecutor, conduct as clearly in the case sufficient before to us, require a mistrial but manages to conceal his conduct until after trial, the same circumstance is presented as in Pool and Jorgenson same reasoning applies. Concealment of a prosecutor s and the serious misdeeds throughout the trial should not expose the defendant to multiple trials. This is exactly provision was intended to prevent. what the Jorgenson, double jeopardy 198 Ariz. at 392, 10 P.3d at 1179 ¶6. ¶36 The state argues that in order for double jeopardy to bar retrial, the prosecutor s request misconduct for a must mistrial be blatant, must be and the misconduct and inextricably connected. It claims the misconduct in this case was not serious because defense counsel failed to move for a mistrial before the case was submitted to the jury. We disagree. The protections afforded by the double jeopardy clause do not turn on whether the state s provided overreaching no reason, is apparent nor do during we see trial. one, The that state has justifies differentiating those acts of misconduct that become apparent or are discovered only after the trial from acts of misconduct that are obvious when committed and therefore capable of an immediate remedy. ¶37 The state contends also that the prosecutor s misconduct -19- I 0 in this case is considerably more limited than the misconduct in either Pool or Jorgenson. Again, we disagree. Misconduct at least as serious as that in Pool and Jorgenson is undeniably present in the matter before us. Like the misdeeds in Pool, Peasley s misdeeds were not isolated events but became a consistent pattern of prosecutorial misconduct through retrial in 1997. that began in 1993 and continued The prosecutor knowingly and repeatedly misled the jury as to how, when, and from whom Godoy first learned the names of the three defendants. that Woods credibility was the obstacle initial that himself been the source. By allowing the jury to believe source, would have the state been avoided apparent had the Godoy It is clear that Godoy testified falsely and that his testimony was used to bolster the credibility of the state s key witness. Moreover, the record establishes that Peasley knew the testimony was false and not only failed to clarify the mistake but argued the evidentiary point to the jury. calculated deception case. reveals Peasley s the actual weakness of the state s His only explanation was that he forgot the correct sequence of events and that during the 1997 trial his health was poor. ¶38 claims Moreover, they do not persuasive. Peasley admits his mistakes but amount to misconduct. he argument is not Peasley is not an inexperienced prosecutor, but rather a veteran homicide prosecutor. that The surprisingly knew was false, He elicited testimony from Godoy and he -20- knew what he was doing. I, Deliberately posing unfounded and misleading questions to bolster the credibility of a witness and then arguing each point to the jury during a capital trial constitutes prosecutorial misconduct that violates the most elementary principles. record supports the conclusion, not Our review of the unlike that in Pool and Jorgenson, that the prosecutor engaged in a pattern of intentional misconduct in the 1993 and 1997 trials aimed at preventing an acquittal and serving to deprive the defendant of a fair trial. On this record, we cannot say the 1997 mistrial in Minnitt s case was not directly caused by Peasley s misconduct. later, McCrimmon s jury, Indeed, just a week having learned of Godoy s misstatements and Peasley s misdeeds, returned a verdict of acquittal. ¶39 The state also claims double jeopardy does not apply because the defense was aware the testimony was false and failed to do anything about it during trial. Defense counsel responded adequately by stating he chose not to challenge the false testimony in order to avoid inevitable prejudice caused by information about a prior conviction and an anonymous informant. ¶40 Thus, indicated that during a bench if defense counsel conference in 1993, Peasley inquired into the information Godoy had prior to meeting with Keith Woods, then the door would be opened to discussing the restaurant robbery and other inadmissible sources implicating the defendants. Peasley used his position, in effect, to bully the defense into submission by threatening to use -21 this information. his course of Realizing defense counsel would not challenge action, Peasley persisted in using the false testimony to his advantage. ¶41 Defense counsel s knowledge of the Godoy falsehood does not nullify the prosecutor s behavior. that a prosecutor diligence, has We have routinely an obligation not but to seek justice. noted only to prosecute with He must refrain from all use of improper methods designed solely to obtain a conviction. State v. Bible, (While a 175 Ariz. 549, 600, 858 P.2d 1152, prosecutor may strike hard blows, foul ones. 1203 (1993) he is not at liberty to strike It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. ) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)); Pool, 139 Ariz. at 103, 677 P.2d at 266. The prosecutor has a duty to see that all defendants receive a fair trial. P.2d 1352, 1369 (1994) State v. . Here, Cornell, 179 Ariz. Peasley was 314, indifferent 331, 878 to that duty. ¶42 Moreover, Godoy s explanation that he testified falsely to protect confidential appears pretextual. was to admit sources or to avoid a hearsay problem All he or Peasley had to do to correct matters knowledge of Minnitt as a suspect prior to the September 8 interview between Godoy and Woods and the truth would have been on the record as it should have been, 22 even if at the 0 - I expense of Woods credibility. ¶43 This egregious prosecutorial misconduct occurred in Minnitt s first two trials, but the third trial, case conducted an or by a new resulted misconduct, whether is in a not the third anomaly; prosecutor and conviction. trial was We free allegedly note, from free however, false of that testimony, falsehoods in the two previous trials permeated the process to the extent that fairness in the third trial could not correct the misdeeds of trials one and two.2 ¶44 In misconduct most instances, is a new trial. the remedy See State v. for Towery, prosecutorial 186 Ariz. 168, 185, 920 P.2d 290, 307 (1996); State v. Atwood, 171 Ariz. 576, 611, 832 P.2d 593, is now 628 replete knowledge, (1992) with introduced . However, the record in the instant case evidence false that the testimony in prosecutor, two trials seriously damaged the structural integrity of both. with full and thus The inevitable conclusion is that the prosecutor was aware that his actions would deprive Minnitt of a fair trial. 2 We announce today s ruling not to While the errors in the 1999 trial have no bearing on our decision, we believe it is necessary to mention briefly the shortcomings of that trial. The state s failure to disclose the drug arrest of an important witness and its untimely disclosure of several witnesses the day before trial and after voir dire violated Rule 15. In addition, during summation in trial three, the state improperly argued that McCrirnmon was pretty close to guilty beyond a reasonable doubt. This reference was misleading and highly improper because McCrimmon had been acquitted and the prosecutor knew it. -23- sanction the prosecutor, but to protect the integrity of the justice system. IV. ¶45 Conclusion For the reasons discussed, we hold that Minnitt s 1999 retrial was barred by the double jeopardy clause of the Arizona Constitution. We therefore vacate the convictions and sentences entered at the conclusion of the 1999 trial and instruct the trial court to dismiss the charges against Minnitt with prejudice.3 Charles E. Jones Chief Justice CONCURRING: Ruth V. McGregor, Justice Vice Chief Rebecca White Berch, Justice Stanley G. Feldman, Justice Michael J. Brown, Judge (retired) ~ In the unrelated case involving the robbery of a Tucson restaurant, a jury found Minnitt guilty of attempted second degree murder, two counts of attempted armed robbery, three counts of aggravated assault, and one count of burglary. He received concurrent sentences of imprisonment on five of the counts, the longest for twenty-one years. As to the remaining two counts, the trial court imposed concurrent fifteen-year sentences, to be served consecutively to his sentences on the other five counts. Today s decision shall have no effect on Minnitt s convictions and sentences stemming from the restaurant robbery. -24- , NOTE: Due to a vacancy on this court at the time this case was decided, the Honorable Michael J. Brown, a retired judge of the Superior Court of Arizona in Pima County, was designated to participate in this case under article VI, § 3 of the Arizona Constitution. -25-
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