Opinion
1 CA-CR 11-0112
01-26-2012
STATE OF ARIZONA, Appellant, v. JIMMY COLEMAN, Appellee.
William G. Montgomery, Maricopa County Attorney by E. Catherine Leisch, Deputy County Attorney Attorneys for Appellant Phoenix Daniel R. Raynak, Attorney at Law by Daniel R. Raynak Attorneys for Appellee Phoenix
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
MEMORANDUM DECISION
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-005371-037 DT
The Honorable Roland J. Steinle, III, Judge
VACATED AND REMANDED
William G. Montgomery, Maricopa County Attorney by E. Catherine Leisch, Deputy County Attorney Attorneys for Appellant Phoenix
Daniel R. Raynak, Attorney at Law by Daniel R. Raynak Attorneys for Appellee Phoenix PORTLEY, Judge
¶1 The State of Arizona ("State") challenges the dismissal, with prejudice, of the indictment against Defendant
Jimmy Coleman. For the following reasons, we vacate the dismissal and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 Defendant was indicted in January 2010, with others, and was charged with conspiracy, illegally conducting an enterprise, assisting in a criminal street gang, money laundering, and possession of narcotic drugs. After he filed a motion to remand, the State successfully moved to dismiss all charges against him without prejudice, except for possession of narcotic drugs.
Defendant was originally indicted on August 25, 2009, but the matter was remanded to the grand jury after he filed an uncontested motion to remand. He was subsequently re-indicted.
Sixty other people were listed in the indictment, which contained 265 counts.
¶3 Defendant then filed a motion to suppress. He argued that the August 2, 2009 traffic stop, where officers found approximately two ounces of cocaine under the passenger-side floor mat, violated his constitutional rights. Before the evidentiary hearing was held, Defendant filed "Defendant's Motion to Dismiss for Prosecutorial Misconduct; Alternatively, Motion to Preclude," and argued that the cumulative effect of the prosecutorial misconduct required the trial court to dismiss the case with prejudice. Specifically, he complained that: (1) he was denied due process because the State misled the grand jury twice, forcing Defendant to file two motions to remand; (2) the State failed to timely set up interviews; (3) during the interviews, the police officers indicated that there was other relevant information from the surveillance officer supporting the basis for probable cause that was not in any police report or otherwise disclosed; and (4) during an interview with Officer Lentz, the prosecutor improperly intervened and prevented Lentz from answering one question.
¶4 The motions were discussed at a status conference. After listening to argument, the court indicated that it would listen to the entire Lentz interview before deciding if sanctions were appropriate.
¶5 Subsequently, Defendant filed "Defendant's Motion to Dismiss Based on Unavailability of State Witness Aaron Lentz" and requested that the case be dismissed. He argued that dismissal was appropriate because Officer Lentz had been indicted on an unrelated felony charge; Lentz's attorney had indicated that his client would follow his advice not to answer any questions relating to his indictment; and the State had refused to give Lentz immunity, which prevented Defendant from using Lentz to impeach another officer.
Officer Lentz was indicted for theft, a class five felony, for allegedly misrepresenting the number of off-duty hours he worked and accepting payment for hours he did not work. The State successfully moved to dismiss the indictment in November 2011.
¶6 At the January 2011 hearing, Officer Lentz and his lawyer appeared and advised the court that Lentz would appear for any interview or deposition but would invoke his Fifth Amendment right and not answer any questions about the theft indictment. Defendant then argued that the State did not have a valid reason for refusing to give Lentz immunity, that Lentz's credibility was critical to the case, and that it would be fundamentally unfair not to grant the motion to dismiss.
¶7 The motion to dismiss with prejudice was granted. We have jurisdiction over the State's appeal pursuant to Arizona Revised Statutes ("A.R.S.") section 13-4032(1) (West 2012).
DISCUSSION
¶8 We review a dismissal of a criminal case for an abuse of discretion. State v. Pecard, 196 Ariz. 371, 376, 998 P.2d 453, 458 (App. 1999) (citation omitted). The court abuses its discretion when its decision is contrary to the facts or law. See State v. Sandoval, 175 Ariz. 343, 347, 857 P.2d 395, 399 (App. 1993) (citation omitted).
¶9 Here, before the trial court held the evidentiary hearing on the motion to suppress, the court dismissed the case with prejudice because Officer Lentz had been indicted and refused to talk about any facts related to the indictment, and the State refused to provide immunity so that he could answer questions about his indictment. Although the minute entry states that the court dismissed the matter for the reasons stated in the Defendant's motion, the record is clear that the court dismissed the case because Lentz refused to discuss the facts related to his indictment and the State refused to grant him immunity.
There was no specific finding to support prosecutorial misconduct; that is, no finding that the State's actions were intentional, known to be improper, and committed with an indifference that creates prejudice that cannot otherwise be cured. See Pool v. Superior Court In and For Pima Cnty. , 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). Although the court advised the State that it should have only objected to the form of the question during Lentz's interview and not advised him not to answer the question, pretrial jousting generally cannot constitute prosecutorial misconduct.
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¶10 Although a witness whose testimony is material and favorable to the defense can be compelled to attend a proceeding and testify, the right is not absolute and does not override a witness's right to assert his or her Fifth Amendment privilege. State v. Mills, 196 Ariz. 269, 276, ¶ 31, 995 P.2d 705, 712 (App. 1999) (citations omitted). The Sixth Amendment right to compel a witness to testify, however, will yield to a witness's Fifth Amendment privilege only "if the witness validly asserts his Fifth Amendment privilege by showing a reasonable ground to apprehend danger to the witness from his being compelled to answer . . . ." State v. Rosas-Hernandez, 202 Ariz. 212, 216, 42 P.3d 1177, 1181 (App. 2002) (citations omitted) (internal quotation marks omitted).
¶11 Although Lentz invoked his privilege against self-incrimination for the theft indictment, he indicated he was amenable to discussing the facts in this case and Defendant was free to continue the interview or depose him about the facts leading up to Defendant's arrest. Defendant was also free to ask Lentz about the indictment, but Lentz could not be compelled to answer any question that might incriminate him. Moreover, the State could not be ordered to grant immunity to Lentz in order to allow the Defendant to ask him about the theft indictment. See State v. Fisher, 141 Ariz. 227, 243, 686 P.2d 750, 766 (1984). Because the State has the discretion to determine when it is willing to grant immunity, id. (citations omitted), dismissing the case because the State refused to provide Lentz immunity was an abuse of discretion.
¶12 Generally, because "dismissal of the indictment is neither automatic nor favored as the primary remedy," the trial court should have considered whether a lesser sanction was necessary, or appropriate, during the pretrial proceedings. State v. Pecard, 196 Ariz. at 379, ¶ 39, 998 P.2d at 461. For example, if it is true, as Defendant argued, that "Officer Lentz made several statements that contradicted what Officer Munzinger said occurred during the stop, and what constituted normal procedure," Defendant has not been harmed by Lentz invoking his Fifth Amendment right. Defendant can use the contradictions at the suppression hearing and the trial court can determine credibility while resolving whether any evidence seized in connection with the car search should be suppressed. As a result, dismissal was not warranted because Lentz invoked his Fifth Amendment right, much less with prejudice.
CONCLUSION
¶13 For the foregoing reasons, we vacate the order
dismissing the indictment with prejudice, and remand the matter to the trial court for further proceedings.
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MAURICE PORTLEY, Judge
CONCURRING:
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JON W. THOMPSON, Presiding Judge
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JOHN C. GEMMILL, Judge