Opinion
No. 1 CA-SA 17-0279
02-01-2018
ANGEL GARCIA, Petitioner, v. THE HONORABLE DOUGLAS GERLACH, 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, Maricopa County Attorney, Real Party in Interest.
COUNSEL Maricopa County Public Defender's Office, Phoenix By Scott L. Boncoskey Counsel for Petitioner Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Real Party in Interest
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Petition for Special Action from the Superior Court in Maricopa County
No. CR2017-001822-001
The Honorable Douglas Gerlach, Judge
JURISDICTION ACCEPTED; RELIEF GRANTED
COUNSEL Maricopa County Public Defender's Office, Phoenix
By Scott L. Boncoskey
Counsel for Petitioner Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Real Party in Interest
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which Presiding Judge James P. Beene and Judge Randall M. Howe joined. CATTANI, Judge:
¶1 Angel Garcia seeks special action review of the superior court's ruling denying his request that the court consider supplemental evidence (a video of the alleged crime) as part of the court's analysis of his motion to remand to the grand jury for a redetermination of probable cause. For reasons that follow, we accept jurisdiction and grant relief, directing the superior court to consider the proffered evidence.
FACTS AND PROCEDURAL BACKGROUND
¶2 A grand jury indicted Garcia on one count of indecent exposure under Arizona Revised Statutes ("A.R.S.") § 13-1402. The charge resulted from a jail video visit between Garcia and his girlfriend, during which Garcia exposed his genitals to his girlfriend and her two-year-old son. The State alleged that when the call began, Garcia was sitting on his bed with a towel wrapped around his waist after taking a shower, and that he asked his girlfriend if she was by herself, to which his girlfriend responded, "No . . . . The kids are home." Garcia then walked to the back of his cell, and after motioning several times to his genital area, exposed his penis. The State alleged that a child's voice was audible on the video recording before Garcia exposed his penis, and that Garcia did not pull his boxers on until after the child's head appeared on the video screen.
¶3 After the grand jury returned an indictment, Garcia filed a motion to remand for a redetermination of probable cause. Garcia's motion detailed the first 2-3 minutes of the video visit and argued that the State's presentation was misleading because the State improperly elicited testimony that Garcia's girlfriend told Garcia the children were "present" when she in fact stated that they were "home." Garcia further asserted that the officer who presented the case to the grand jurors misled the jurors regarding what Garcia could see and hear during the call. Garcia alleged, for example, that the officer did not explain that inmates must use a telephone receiver to hear what is occurring on the other line, which was arguably relevant to whether Garcia knew there was a child in the room with his girlfriend. Garcia asserted that because he placed the telephone receiver down before walking to the back of his cell, he did not hear the child's voice before he exposed his penis. Finally, Garcia alleged the State misled the jurors regarding the extent to which the child was visible on the monitor and therefore to him.
¶4 During a hearing on the motion, the superior court asked Garcia's counsel to explain "[w]here in the record on this motion can I determine what can or cannot be seen on the video or what can or can't be heard?" Garcia's counsel offered to present the video to the court, and further suggested that the court could also consider, as avowals, the facts recited in the motion. The court declined to accept a copy of the video or the proffered avowals, stating an intent "to rule within the next 60 seconds." The court also stated that the ruling would be based on "the record that has been presented. And if a motion is unsupported, it warrants denial." The court denied the motion as "unsupported by . . . reasonable evidence that would support the contention that the testimony [was] inconsistent with what could be seen or heard on the video."
¶5 Garcia subsequently filed a motion to reconsider and submitted a digital copy of the video visit on a compact disc. The superior court denied the motion, finding that such a motion may not be used to present evidence for the first time where the evidence could reasonably have been presented earlier. This special action followed.
DISCUSSION
¶6 A challenge to denial of a motion to remand to the grand jury generally is not reviewable on appeal and must instead be made by special action before trial. Bashir v. Pineda, 226 Ariz. 351, 353, ¶ 6 (App. 2011). Accordingly, and in an exercise of our discretion, see Haas v. Colosi, 202 Ariz. 56, 57, ¶ 2 (App. 2002), we accept special action jurisdiction.
¶7 We review the denial of a motion to remand to the grand jury for an abuse of discretion. Cespedes v. Lee, 243 Ariz. 46, 48, ¶ 5 (2017); Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, 253-54, ¶ 10 (2003); see also Ariz. R.P. Spec. Act. 3. We defer to the superior court's explicit or implicit factual findings and will affirm those findings if supported by reasonable evidence. Twin City Fire, 204 Ariz. at 254, ¶ 10.
¶8 Under Rule 1.9(a) of the Arizona Rules of Criminal Procedure, all motions "must include a memorandum that states facts, arguments, and authorities pertinent to the motion." The superior court interpreted this requirement as mandating that a party submit the evidence on which it relied with the motion. But even assuming the rule requires more than "stat[ing]" the factual grounds for the motion, see Ariz. R. Crim. P. 1.9(c) (permitting attachments), the superior court maintains discretion to set a hearing on the motion, and nothing prevents the superior court from exercising its discretion to admit additional evidence at such a hearing—assuming proper notice to the opposing party and an opportunity to respond. See Ariz. R. Crim. P. 1.9(e) ("On a party's request or on its own, the court may set a motion for argument or hearing.") (emphasis added).
We cite the current version of the Arizona Rules of Criminal Procedure, as amended effective January 1, 2018. Although renumbered and reworded, current Rule 1.9 on which we rely did not materially alter the directives of the rules in effect at the time of the court's ruling. See Ariz. R. Crim. P. 35.1, 35.2 (2017). --------
¶9 Here, the evidence in question was a short video recording of the alleged crime itself. Given Garcia's allegations that the State's presentation to the grand jury misrepresented what happened during the video call, the recording was clearly relevant to the only issue before the court. Garcia's motion to remand described what was depicted in the video and the State did not suggest surprise or an inability to address the contents of the video. Thus, the court's refusal to consider the video excluded clearly relevant evidence that both parties were prepared to address.
¶10 Under these unique circumstances, we conclude that the court abused its discretion by declining to review the proffered evidence. While the court's desire to rule expeditiously was not unreasonable, the recording was immediately available and of very short duration, detailing a crime that took place over a 2 or 3 minute timespan. Accordingly, admitting the tape in evidence would not have unreasonably delayed the proceedings, and the court's failure to do so thwarted the interests of justice.
CONCLUSION
¶11 Based on the foregoing, we accept jurisdiction and grant relief by vacating the ruling on Garcia's motion to remand to the grand jury and remanding this case to the superior court to re-determine the merits of Garcia's motion after considering the video recording. We express no opinion as to the ultimate merits of Garcia's motion.