Opinion
No. 1 CA-CR 13-0564
05-29-2014
STATE OF ARIZONA, Appellant, v. ADRIAN JOSEPH MARTINEZ, Appellee.
Maricopa County Attorney's Office, Phoenix By E. Catherine Leisch Counsel for Appellant Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2011-161291-002
The Honorable Harriett Chavez, Judge
REVERSED AND REMANDED
COUNSEL
Maricopa County Attorney's Office, Phoenix
By E. Catherine Leisch
Counsel for Appellant
Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellee
MEMORANDUM DECISION
Acting Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Samuel A. Thumma joined.
SWANN, Judge:
¶1 The state appeals the superior court's order dismissing the prosecution of Adrian Joseph Martinez ("Defendant") with prejudice based on prosecutorial misconduct. Because the court's ruling expressly indicated the absence of a finding of intentional misconduct, we reverse and remand for further proceedings consistent with the appropriate legal standard.
FACTS AND PROCEDURAL HISTORY
¶2 Defendant was charged by information with three counts of aggravated DUI, class 4 felonies, and one count of unlawful flight from law enforcement, a class 5 felony, arising from events that occurred in December 2011. The state alleged, consistent with A.R.S. § 28-1383(A)(1), that the DUIs occurred while Defendant's driver's license or privilege to drive was suspended, cancelled, revoked, refused, or restricted.
¶3 At trial by jury, the state introduced evidence that a police officer had provided the Motor Vehicle Division ("MVD") with an affidavit stating that he had served a notice of driver's license suspension on Defendant in May 2011. Defendant objected and claimed the affidavit was inadmissible, arguing that the officer had been discharged from the police department "for being dishonest" and "a liar," and would not be subject to cross-examination because the state did not intend to call him to testify. The court overruled Defendant's objection, finding that the affidavit was part of the MVD's records and therefore constituted admissible hearsay. The affidavit was then admitted into evidence in connection with the testimony of the MVD's custodian of records. On cross-examination, the court allowed Defendant to ask the custodian of records whether she knew of the officer's status with the police department, but when the custodian responded that she had no knowledge of the officer and Defendant informed the court that he did not
plan to provide evidence regarding the officer's firing, the court prohibited Defendant from questioning the custodian about the firing.
¶4 A few days later, before the close of the state's case-in-chief, Defendant filed a motion to dismiss for prosecutorial misconduct, asserting that Defendant had recently discovered that the officer who authored the affidavit had been placed on the Maricopa County Attorney's Officer Integrity List months before trial. Defendant further asserted that the state had never disclosed this fact to him, and asked the court to dismiss the charges against him with prejudice.
¶5 At oral argument on Defendant's motion, the prosecutor stated that she had not known that the officer was on the Integrity List because "it was not something that I had paid any attention to in preparing for this trial . . . because he was not an officer that we were calling in our case," and "the State was relying on the fact that [the MVD records were] self-authenticating document[s]." Defendant argued that though he was "not sure if [the failure to disclose was the result of] ignorance or . . . willful just [to] get him at all costs kind of attitude from the prosecutor's office," the failure to disclose was a prejudicial violation of Brady v. Maryland, 373 U.S. 83 (1963), that warranted a dismissal with prejudice.
¶6 The court granted Defendant's motion and dismissed the case with prejudice. The court found that the officer's inclusion on the Integrity List was "pretty significant evidence" and the state had "misled" the court because, had disclosure of this fact been made, the court "might have sustained the defense objection to the [officer's affidavit] coming in, because the rule clearly talks about that [if] the method or circumstances indicate a lack of trustworthiness, then it doesn't come in under the hearsay exception." The court stated that it "[did]n't know that [the misconduct] was intentional by these two prosecutors," but explained that it believed dismissal with prejudice was warranted because the failure to disclose was a "severe error" and the court's prior rulings in ignorance of that error had deprived Defendant of the opportunity to "present[ ] part of his defense through the evidence."
¶7 The state timely appeals the order of dismissal.
DISCUSSION
¶8 We review a dismissal with prejudice for prosecutorial misconduct for an abuse of discretion. State v. Trani, 200 Ariz. 383, 384, ¶ 5, 26 P.3d 1154, 1155 (App. 2001). We also review a Brady violation
finding for an abuse of discretion. See State v. Medrano, 173 Ariz. 393, 399, 844 P.2d 560, 566 (1992).
¶9 When prosecutorial misconduct has deprived the defendant of a fair trial, mistrial is the appropriate sanction. Trani, 200 Ariz. at 384, ¶ 6, 26 P.3d at 1155. Retrial should not be barred, however, unless the three criteria set forth by our supreme court in Pool v. Superior Court (State) are met:
1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.
139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984) (footnote omitted).
¶10 The state contends that its failure to disclose the officer's inclusion on the Officer Integrity List did not constitute a Brady violation. We construe this as an argument that the first Pool criterion, improper conduct by the prosecutor, was not met. We hold that the superior court did not abuse its discretion by finding that the state acted improperly. Under Brady, 373 U.S. at 87, and Ariz. R. Crim. P. 15.1, the state is required to timely disclose exculpatory evidence, including evidence affecting witness credibility, Giglio v. United States, 405 U.S. 150, 154 (1972). Here, to meet its burden to show that Defendant was guilty of aggravated DUI, the state was required to prove that Defendant committed DUI while his driver's license or privilege to drive was suspended, A.R.S. § 28-1383(A)(1), and that he knew or should have known of the suspension, State v. Williams, 144 Ariz. 487, 489, 698 P.2d 732, 734 (1985). The officer's affidavit of personal service of a notice of suspension on Defendant was directly relevant to that inquiry. The state now argues that the affidavit was not necessary because other evidence -- namely, other records
showing that a notice of suspension had been served on Defendant by mail -- satisfied the state's burden of proof. This argument overlooks the fact that the presumption of knowledge triggered by service by mail, see A.R.S. § 28-3318(E), is rebuttable, State v. Cifelli, 214 Ariz. 524, 527, ¶ 13, 155 P.3d 363, 366 (App. 2007) -- if a defendant puts forth evidence that he did not receive a mailed notice, the question whether he knew or should have known of a suspension is for the trier of fact to decide, State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App. 1993). Accordingly, we cannot say that the superior court abused its discretion by concluding that the officer's affidavit of personal service was material and that his inclusion on the Integrity List was exculpatory evidence that the state improperly failed to disclose even after Defendant brought the issue of the officer's firing to the state's attention.
¶11 Nor can we say that the superior court abused its discretion by finding that the prosecutor's improper conduct caused Defendant to incur prejudice that could not be cured by means short of a mistrial, as required by the third Pool criterion. The court admitted the officer's affidavit, finding it was admissible hearsay as part of the MVD's records. Under Ariz. R. Evid. 803(8)(B), public records are admissible if, inter alia, "neither the source of information nor other circumstances indicate a lack of trustworthiness." Had the court been informed that the officer who authored the affidavit was on the Integrity List, the court reasonably could have found that the affidavit was untrustworthy and therefore inadmissible. Lacking that information, however, the court allowed the affidavit to be admitted. The court did not abuse its discretion by finding that the admission of the affidavit prejudiced Defendant and warranted a mistrial.
¶12 The court abused its discretion, however, by ruling that a dismissal with prejudice was required even though it "[did]n't know that [the misconduct] was intentional." The second Pool criterion requires the court to determine whether the misconduct "amounts to intentional conduct . . . which [the state] pursues for any improper purpose . . . ." 139 Ariz. at 108-09, 677 P.2d at 271-72. By entering a dismissal with prejudice without first determining whether the misconduct was intentional, the court misapplied the law and therefore abused its discretion. Accordingly, we reverse and remand for further proceedings to determine whether the second Pool criterion -- intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal -- is present.
CONCLUSION
¶13 For the reasons set forth above, we reverse the order of dismissal with prejudice and remand for further proceedings.