Opinion
No. 1 CA-SA 21-0017
03-09-2021
JEFFREY R. MARTINSON, Petitioner, v. THE HONORABLE JAY ADLEMAN, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA ex rel. ALLISTER ADEL, Maricopa County Attorney, Real Party in Interest.
COUNSEL Varcoe Law Firm, PLLC, Phoenix By Robyn Greenberg Varcoe Co-Counsel for Petitioner Willmott & Associates, PLC, Phoenix By Jennifer L. Willmott Co-Counsel for Petitioner Maricopa County Attorney's Office, Phoenix By Michael A. Minicozzi, Joseph Hinrichsen Counsel for Real Party in Interest Arizona Voice for Crime Victims By Colleen Clase, Thomas E. Lordan Counsel for Crime Victims
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2018-002279-001
The Honorable Jay R. Adleman, Judge
JURISDICTION ACCEPTED; RELIEF DENIED
COUNSEL Varcoe Law Firm, PLLC, Phoenix
By Robyn Greenberg Varcoe
Co-Counsel for Petitioner Willmott & Associates, PLC, Phoenix
By Jennifer L. Willmott
Co-Counsel for Petitioner Maricopa County Attorney's Office, Phoenix
By Michael A. Minicozzi, Joseph Hinrichsen
Counsel for Real Party in Interest Arizona Voice for Crime Victims
By Colleen Clase, Thomas E. Lordan
Counsel for Crime Victims
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined. CRUZ, Judge:
¶1 In this special action petition, Jeffrey R. Martinson requests this court review the decision of the superior court denying his motion to dismiss for double jeopardy violations. For the following reasons, we accept jurisdiction and deny relief.
JURISDICTION
¶2 While our acceptance of special action jurisdiction is highly discretionary, "a petition for special action is the appropriate vehicle for a defendant to obtain judicial appellate review of an interlocutory double jeopardy claim." State v. Moody, 208 Ariz. 424, 438, ¶ 22 (2004) (quoting Nalbandian v. Superior Court, 163 Ariz. 126, 130 (App. 1989)). Accordingly, we accept jurisdiction of Martinson's interlocutory double jeopardy claim.
FACTUAL AND PROCEDURAL HISTORY
¶3 In 2004, a grand jury returned an indictment charging Martinson with first degree felony murder and child abuse of his son. Trial began in 2011, and the jury returned guilty verdicts as to both charges. Martinson moved for a new trial, and in 2012, the superior court granted his motion for new trial based on juror misconduct and error in admitting expert testimony. In ordering the new trial, the court specifically rejected Martinson's claims of prosecutorial misconduct.
¶4 In 2012, the State obtained a new indictment against Martinson, which, in addition to felony murder, alleged premeditated murder. The State moved to dismiss the 2004 indictment without prejudice. Martinson moved to dismiss the 2012 indictment on the basis that it could not properly be filed before dismissal of the 2004 indictment. The superior court granted Martinson's motion and denied the State's motion, and the State filed a special action petition challenging the denial. This court accepted jurisdiction and granted relief, finding the State had established good cause for dismissing the 2004 indictment without prejudice, but we did not decide whether the State's attempt to dismiss the 2004 indictment was made in bad faith. State ex rel. Montgomery v. Duncan, No. 1 CA-SA 12-0217, 2012 WL 5867379, at *5, ¶¶ 20-22 (Ariz. App. Nov. 20, 2012) (mem. decision) ("Martinson I").
¶5 On remand, the superior court ruled the State had engaged in prosecutorial misconduct and bad faith, and it dismissed the 2004 indictment with prejudice. The State appealed, and in State v. Martinson, 241 Ariz. 93 (App. 2016) ("Martinson II"), this court vacated the superior court's order dismissing the 2004 indictment with prejudice and ordered the superior court to dismiss the indictment without prejudice. Id. at 102, ¶ 44.
¶6 In 2018, the State initiated grand jury proceedings, and the grand jury returned an indictment charging Martinson with first degree murder and child abuse. The superior court did not immediately dismiss the 2004 indictment and instead scheduled hearings and discovery to consider a motion Martinson filed to disqualify the entire prosecutorial agency from the matter. The State filed a special action, alleging the superior court was not following the mandate of Martinson II. State ex rel. Montgomery v. Duncan, No. 1 CA-SA 18-0284 (Ariz. App. Jan. 9, 2019) (order) ("Martinson III"). This court found the superior court was violating the remand in Martinson II, and it clarified that its prior orders had "vacated the superior court's findings regarding prosecutorial misconduct and bad faith," and effectively recognized that the prosecution could proceed with the 2018 indictment. Id. at *2, ¶¶ 2-3.
¶7 After the 2004 indictment was dismissed without prejudice and the 2018 indictment was obtained, Martinson challenged the grand jury proceedings, and he filed a motion to remand to the grand jury for a new finding of probable cause, which the superior court denied. Martinson then filed a special action, alleging the proceedings were deficient due to the State's failure to (1) inform Martinson it was returning to the grand jury to seek a new indictment, (2) provide clearly exculpatory evidence, and (3) adequately instruct the grand jury on the law. This court accepted jurisdiction but denied relief, finding the proceedings complied with the law. Martinson v. Adleman, No. 1 CA-SA 19-0295 (Ariz. App. Jan. 21, 2020) (order) ("Martinson IV").
¶8 In 2020, Martinson filed a motion to dismiss the 2018 indictment on double jeopardy grounds, which the superior court denied. Martinson filed this special action, seeking review of that ruling.
DISCUSSION
I. A Second Trial is Not Barred by the Double Jeopardy Clause Due to Multiple Prosecutions
¶9 A defendant is protected from being tried twice for the same offense under the double jeopardy clause of the Fifth Amendment and Article 2, Section 10, of the Arizona Constitution. State v. Minnitt, 203 Ariz. 431, 437, ¶ 27 (2002). Jeopardy attaches once the jury is impaneled and sworn, and generally once it attaches the defendant may not be subject to a second trial for the same offense. State v. Espinoza, 233 Ariz. 176, 179, ¶ 6 (App. 2013). Retrial is prohibited "only if there has been some event, such as an acquittal, which terminates the original jeopardy." Id. (internal quotation marks and citations omitted). But "[w]hen no terminating event has occurred, the jeopardy continues unabated." Id. (internal quotation marks and citation omitted). "Whether double jeopardy bars retrial is a question of law, which we review de novo." Moody, 208 Ariz. at 437, ¶ 18.
¶10 Although Martinson was tried and convicted in 2011, the double jeopardy clause does not ordinarily bar retrial when a court grants a mistrial on the defendant's motion. See State v. Wilson, 134 Ariz. 551, 554 (App. 1982). Martinson concedes that "when the first trial court granted the new trial in 2012 based on the improper admission of expert opinion evidence and juror misconduct, jeopardy continued, and retrial was not barred." Martinson does not object to his retrial based on the superior court's grant of a new trial in 2012. Instead, Martinson argues the superior court's dismissal of the 2004 indictment with prejudice bars retrial under the double jeopardy clause, because the order "intended to end all prosecution of Martinson for the offense charged." However, the State appealed the superior court's dismissal, it was subsequently vacated by this court, and we remanded with instructions for the superior court to dismiss the State's indictment without prejudice. See Martinson II, 241 Ariz. at 102, ¶ 44; see also Nielson v. Patterson, 204 Ariz. 530, 533, ¶ 12 (2003) ("A vacated judgment lacks force or effect and places parties in the position they occupied before entry of the judgment."). The State was free to refile the dismissed charges following a dismissal without prejudice. See State v. Schneider, 135 Ariz. 387, 389 (App. 1982).
¶11 Martinson argues the State's appeal of the dismissal with prejudice was improvidently granted and this court's findings in Martinson II are invalid, because the dismissal of the 2004 indictment functioned as an acquittal and was therefore unappealable. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977) ("[A] verdict of acquittal . . . could not be reviewed, on error or otherwise, without putting (a defendant) twice in jeopardy, and thereby violating the Constitution.") (quoting United States v. Ball, 163 U.S. 662, 671 (1896)). We disagree with Martinson's characterization of the superior court's dismissal.
[A]n acquittal [encompasses] any ruling that the prosecution's proof is insufficient to establish criminal liability for an offense. Thus an "acquittal" includes "a ruling by the court that the evidence is insufficient to convict," a "factual finding [that] necessarily establish[es] the criminal defendant's lack of criminal culpability," and any other "ruling which relate[s] to the ultimate question of guilt or innocence."Evans v. Michigan, 568 U.S. 313, 318-19 (2013) (internal citations omitted). The dismissal did not speak on Martinson's guilt or innocence, nor did it establish there was insufficient evidence to convict him. Contrary to Martinson's claims, the order did not resolve the issue of intent or any other elements of the charges against him.
¶12 The superior court's order held that prosecutorial misconduct justified dismissal, which functioned as a procedural dismissal rather than a merits-related ruling. "Procedural dismissals include rulings on questions that are unrelated to factual guilt or innocence, but which serve other purposes, including a legal judgment that a defendant, although criminally culpable, may not be punished because of some problem." Id. (internal quotation marks and citations omitted). And "termination of the proceedings against [a defendant] on a basis unrelated to factual guilt or innocence of the offense of which he is accused," does not bar retrial under the double jeopardy clause. Id. at 319 (internal quotation marks and citation omitted).
¶13 Martinson alternatively contends that even if the court's dismissal did not resolve factual issues in his favor, factual elements were previously resolved when the court granted the motion for retrial in 2012 and the jury convicted him pursuant to the 2004 indictment. Martinson claims that "[i]t is not necessary that resolution of the factual elements occur at the same time as the dismissal," and so once the superior court dismissed the case with prejudice, jeopardy was terminated. We find this argument to be without merit. Once Martinson's conviction was reversed, "the original conviction has been nullified and the slate wiped clean." Bullington v. Missouri, 451 U.S. 430, 442 (1981) (internal quotation marks and citation omitted). Any prior resolution of issues is unrelated to the new proceedings based on the 2018 indictment. And again, the dismissal with prejudice was vacated and it could not terminate jeopardy; vacating the order dismissing the 2004 indictment placed the parties in the same position they occupied before entry of the dismissal with prejudice. See Nielson, 204 Ariz. at 533, ¶ 12.
¶14 Martinson was tried and convicted for the 2004 indictment. But Martinson successfully moved for a new trial in 2012, at which point he "agreed to forego his right to a final determination by the first tribunal." Minnitt, 203 Ariz. at 438, ¶ 28. Although the 2004 indictment was dismissed with prejudice by the superior court, that order was subsequently vacated. Since 2011, there has been no merits-based ruling on the charges against Martinson, and there has been no event that has brought finality to the case and terminated jeopardy. The court did not err in finding that a second trial is not barred by the double jeopardy clause. II. A Second Trial is Not Barred by the Double Jeopardy Clause Due to Bad Faith and Pervasive Prosecutorial Misconduct
¶15 Martinson also claims that prosecutorial misconduct bars retrial under the double jeopardy clause. This issue is normally presented when a defendant moves to dismiss the second prosecution on double jeopardy grounds because he claims the prosecution intentionally forced a mistrial of the original prosecution. Moody, 208 Ariz. at 437, ¶¶ 19-20; see also Pool v. Superior Court, 139 Ariz. 98, 105-09 (1984). When a prosecutor knowingly engages in "improper and prejudicial" conduct "with indifference to a significant resulting danger of mistrial or reversal," jeopardy will attach and bar retrial. Pool, 139 Ariz. at 108-09. Before jeopardy will bar a retrial after a mistrial, the court must find that the prosecutor's conduct was intentional conduct that caused prejudice to the defendant and "cannot be cured by means short of a mistrial." Id.
¶16 Here, however, Martinson raises allegations of prosecutorial misconduct that occurred in grand jury proceedings, and Martinson cannot argue that the prosecutors forced mistrial and have acted "with indifference to a significant resulting danger of mistrial or reversal," because the second trial has not yet begun. It is too premature to make a ruling on double jeopardy grounds regarding alleged prosecutorial misconduct on pretrial matters and proceedings.
We note that most of Martinson's allegations of prosecutorial misconduct and errors in the State's presentation of evidence during grand jury proceedings have already been reviewed by this court in Martinson IV, in which we denied Martinson relief and found the proceedings comported with due process. See Martinson IV, No. 1 CA-SA 19-0295. --------
¶17 Martinson argues we must also look at the prosecutorial misconduct that occurred in the trial of the 2004 indictment and prior proceedings to consider the "cumulative effect." But Martinson was granted a new trial in 2012 not because of prosecutorial misconduct, but due to other trial errors. This court has already addressed Martinson's claims of misconduct that took place during trial, but we found Martinson was unable to prove prejudice. Martinson II, 241 Ariz. at 99-100, ¶¶ 27-30. Further, after Martinson was granted a new trial, "the slate was wiped clean," and any allegations of misconduct prior to the issuing of the new indictment in 2018 involved different prosecutors and different, independent proceedings that are unrelated for double jeopardy purposes. To the extent Martinson asks us to revisit and reverse the findings in Martinson II, we will not, and cannot, do so.
¶18 Prosecutorial misconduct does not bar retrial in this case.
CONCLUSION
¶19 For the foregoing reasons, we accept special action jurisdiction and deny relief.