Opinion
1 CA-CR 98-0153
Filed February 9, 1999
Appeal from the Superior Court of Maricopa County, Cause No. CR 95-10952.
The Honorable Gregory H. Martin, Judge.
REVERSED AND REMANDED
Janet A. Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Randall M. Howe, Assistant Attorney General, Attorneys for Appellee, Phoenix.
Dean W. Trebesch, Maricopa County Public Defender by Christopher Johns, Deputy Public Defender, Attorneys for Appellant, Phoenix.
OPINION
¶ 1 Kenneth Dean Miller ("Defendant") appeals his conviction for Aggravated DUI with one prior conviction, a class 4 felony. Defendant claims the trial court committed fundamental error by participating in plea negotiations and then presiding at trial. Defendant also claims the court erred in permitting the arresting officer to testify that Defendant's behavior was consistent with behavior of individuals "impaired to the slightest degree." For reasons that follow we reverse the case and remand for new proceedings.
FACTS AND PROCEDURAL HISTORY
¶ 2 On November 24, 1995, Defendant was charged by information with driving under the influence while his license was suspended. On July 26, 1996, the Honorable Gregory H. Martin met with Defendant and counsel for both sides in a settlement status conference. At the time of the conference, Defendant was facing four separate aggravated DUI cases for which charges had been filed and another DUI case that had yet to be charged. Judge Martin told Defendant that the reason for the meeting was to see "whether we can resolve these cases." The trial judge informed Defendant that he was sitting as special assignment judge to assist in the backlog of cases and that he did not take the cases to try but that "if the cases aren't settled and they are still in case transfer, it's likely that I might take them back for trial."
¶ 3 The trial judge told Defendant that, with five pending charges, he was facing "a long, long, long time" in prison, if he chose to go to trial and lost on any or all charges. The trial judge and counsel then explained to Defendant the various sentencing possibilities, given the number of charges, a prior conviction in another state, and the allegation that one offense occurred while Defendant was on release from another charge. Defense counsel advised that on the immediately pending offense (the case from which this appeal arises), Defendant was facing a presumptive term of four and one-half years to a super-aggravated term of seven and one-half years. The trial judge advised Defendant that, if convicted of all counts and assuming he received presumptive terms, he faced total sentences ranging from twelve to thirty-six and one-half years, depending on whether the sentences ran concurrently or consecutively.
¶ 4 The State offered a plea bargain whereby Defendant would plead guilty to three charges. Under the proposed agreement, Defendant would receive probation for two of the charges and, for the third offense, would plead guilty with one prior felony conviction. Defendant would receive the presumptive prison term of six years with ten years' probation upon release. The trial judge told Defendant that he had a right to reject the plea offer and have a jury trial on each of the charges but that the judge wanted to make sure that Defendant knew that if he lost, he was facing a "ton of time in prison."
¶ 5 Defendant stated that he understood the offer and the potential sentences and that he did not want to accept the proposed plea bargain. Defendant told the judge that he felt there were issues in his cases that needed to be addressed and motions that should be filed. Defense counsel advised the judge that he had discussed the issues with Defendant and did not think they were meritorious. The judge told Defendant,
I'm not here to twist arms . . . . I mean I don't know if you're getting advice from family members who are not law trained, for instance, or people sitting down there in the jail. I caution you if you're getting that kind of advice, it's probably worth about as much as you're paying for it.
¶ 6 The judge then stated to counsel, "[h]e certainly has a right to try them all, you know, and it would be inappropriate for me to in any way try to talk him out of that." Defendant expressed the opinion that the plea offer was not fair. In response, the judge told Defendant:
Well, if that's the best you're going to get, then I suppose that's what you've got to do.
. . . .
From my own experience . . . as a lawyer doing some criminal work, and as a judge who at some point presided over criminal cases, this offer is not unfair in light of what I see here and in light of your record. It's just a fact that the State, the prosecution, with this kind of — with these kinds of circumstances, I mean it's just not going to treat you, you know, real gingerly. They're going to ask for, you know, some punishment. So at least in my mind this is not unfair, this is not an unfair deal. I hear you. I mean I probably wouldn't want — I know I wouldn't want to go to prison for six years. If I was faced with five DUI counts and the record that you have, I would consider counting [sic] my losses.
The judge advised Defendant to consider following the advice of his attorneys, both of whom recommended accepting the plea offer. The judge then ended the session by stating, "[i]t's clear to me Mr. Miller doesn't want to settle this case, and that's fine."
¶ 7 On July 29, 1996, the judge opened pretrial proceedings by placing the following on the record:
Just so the record is clear, I think the last time we were on the record, the Court was presiding over one, for want of a better term, I guess, maybe a settlement conference that was on Friday, and I indicated on the record that I would not be the judge trying this case because I had other cases to attend today. Within an hour after that time, the civil case that I had settled.
And so as a result, I was free to take cases from . . . the docket. So I just took this one.
So we're ready for trial. We've got some pretrial motions to resolve.
Mr. Carrion [defense counsel], did you want to say anything for the record right now?
Defense counsel advised the court that Defendant and the State had entered into a stipulation that Defendant's license was suspended at the time of the offense and that Defendant knew it. Defense counsel made no objection to the judge presiding at trial after the judge had participated in the settlement conference.
¶ 8 Defendant told the judge that he had a conflict with his attorney because his attorney wanted him to accept the plea agreement. He also claimed he had a conflict with the prosecutor because he believed the prosecutor had had contact with his ex-wife and that that contact may have violated provisions of his divorce. The judge found no conflict in either situation.
¶ 9 The State called only one witness in its case-in-chief, Officer Boyd, the arresting officer. The State inquired about Officer Boyd's experience dealing with intoxicated individuals, which elicited objections from Defendant.
Q. In your career as a police officer, sir, have you had the opportunity to come into contact with individuals who are under the influence of alcohol?
A. Yes, I have.
Q. Do you come into contact with folks that are impaired to the point where they cannot walk?
A. Yes, I do.
Q. Do you come in contact —
MR. CARRION: Objection, foundation.
THE COURT: Overruled.
Q. Do you come in contact with individuals that are impaired to the slightest degree?
A. Yes.
Q. Have you observed the signs and symptoms of individuals that are impaired to the slightest degree?
A. Yes.
MR. CARRION: Your Honor, again, I'm going to object. Foundation as to how this officer can draw such a conclusion.
THE COURT: Overruled.
Q. In your career, sixteen plus years as a police officer, have you been involved in DUI investigations?
A. Yes, I have.
Q. Approximately, how many DUI investigations have you conducted in your career?
A. Well over two hundred.
¶ 10 Officer Boyd testified that on the night of September 19, 1995, he and his partner observed a light blue Datsun traveling eastbound on Van Buren. The vehicle stopped at the corner of Van Buren and Twentieth Street, where a woman who had been standing on the corner got into the car. The vehicle then proceeded south on Twentieth Street with the officers following. The officers observed the vehicle cross the center line, move back into its own lane, and then stop at the stop light on Washington Street. When the light turned green, the vehicle turned left, traveling eastbound on a one-way westbound street. The officers, still following the car, activated their siren and flashing lights. The vehicle pulled over.
¶ 11 Officer Boyd testified that he contacted the driver of the vehicle, whom he identified as Defendant. The officer asked Defendant if he knew why he had been stopped, and Defendant said "no." When Officer Boyd told Defendant he had been driving the wrong way down a one-way street, Defendant responded "[o]h." Officer Boyd asked Defendant to get out of the vehicle, smelled a strong odor of alcohol from his breath, and noticed that his eyes were watery and bloodshot, his speech was slow and slurred, and his balance was poor. When the officer asked Defendant if he knew the woman in his vehicle, Defendant first said he did, and then said he did not. Defendant admitted to having several beers.
¶ 12 The State then asked, "[s]ir, you've observed the bloodshot watery eyes, the odor of alcohol, he's admitted drinking to you, you've observed his balance, and you have listened to his speech. Are these signs and symptoms consistent with someone impaired by alcohol to the slightest degree?" Defendant objected as calling for a conclusion. The court overruled the objection, and Officer Boyd answered, "[y]es."
¶ 13 Officer Boyd continued to testify that after running Defendant's license through the computer and learning it was suspended, he arrested Defendant. He told Defendant that another officer would conduct field tests for alcohol. Defendant was transported to the police station.
¶ 14 The State rested, and the defense rested without presenting any evidence. The jury found Defendant guilty of aggravated DUI and found the State's allegation of a prior conviction to be true.
¶ 15 The State recommended that the judge impose a super-aggravated sentence, and the probation officer who conducted the presentence investigation recommended a "term greater than the presumptive." The judge found no aggravating or mitigating factors calling for a sentence other than the presumptive and sentenced Defendant to the presumptive term of four and one-half years with credit for 162 days of presentence incarceration.
¶ 16 Defendant filed a petition for post-conviction relief on July 22, 1997, alleging that he had requested his trial counsel to file a notice of appeal but that counsel had failed to do so. The judge granted Defendant's request for permission to file a delayed notice of appeal. Defendant timely filed a delayed notice of appeal. We have jurisdiction pursuant to the Arizona Constitution, Article 6, section 9, and Arizona Revised Statutes Annotated ("A.R.S.") sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033(A) (Supp. 1998).
ISSUES
I. Did the trial court commit fundamental error by participating in a settlement conference and then presiding at trial?
II. Did the trial court abuse its discretion by allowing the State's sole witness to testify that Defendant's conduct was consistent with that of a person "impaired to the slightest degree?"
DISCUSSION I. The Trial Judge's Participation in Plea Negotiations
¶ 17 Defendant first argues that the judge improperly participated in plea discussions between the State and Defendant in violation of Arizona Rules of Criminal Procedure, Rule 17.4(a) (1996), and then compounded the error by presiding over Defendant's trial.
¶ 18 Because Defendant did not object to either the judge's participation in the settlement discussion or the judge's conduct of the trial, we review Defendant's claim for fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991). Fundamental error goes to the foundation of the case, takes from the defendant a right essential to his defense, and is of such magnitude that defendant could not possibly have received a fair trial. See State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993), cert. denied, 511 U.S. 1046 (1994). Fundamental error is "clear, egregious, and curable only via a new trial." Gendron, 168 Ariz. at 155, 812 P.2d at 628.
¶ 19 At the time of the settlement conference, Rule 17.4(a), Arizona Rules of Criminal Procedure, stated: "The parties may negotiate concerning, and reach an agreement on, any aspect of the disposition of the case. The court shall not participate in any such negotiation." The court's role in plea bargaining is limited to reviewing a proposed agreement reached by the State and a defendant and then accepting or rejecting that agreement. See State v. Superior Court (Williams), 125 Ariz. 575, 577-78, 611 P.2d 928, 930-31 (1980).
¶ 20 Defendant argues that the judge's actions here constituted impermissible participation in the settlement discussions, and the State does not dispute this assertion. We agree.
¶ 21 In this case, the trial judge called a "settlement status conference" to determine if Defendant's cases could be resolved by settlement. Because no agreement yet existed between the State and Defendant, the judge's involvement in the process was premature. The judge actively participated in the negotiations with Defendant by expressing that the State's offer was "not unfair" (in response to Defendant's stated belief that it was unfair), advising Defendant that he was facing considerable time in prison if he rejected the offer, and telling Defendant that if he, the judge, were in Defendant's situation, he would consider cutting his losses by accepting the plea bargain offer. The trial judge clearly involved himself in the plea discussions between the State and Defendant in violation of the prohibition of Rule 17.4(a).
¶ 22 We agree with Defendant's contention that the violation of Rule 17.4(a) in itself constitutes fundamental error because a judge's participation could coerce a defendant into entering a plea agreement. For this proposition Defendant cites United States v. Anderson, 993 F.2d 1435 (9th Cir. 1993), and United States v. Bruce, 976 F.2d 552 (9th Cir. 1992), both of which found coercive judicial involvement in plea discussions in violation of Rule 11(e)1, Federal Rules of Criminal Procedure, which provides that "[t]he court shall not participate in any [plea] discussions." In both cases, the Ninth Circuit vacated the resulting plea agreements and stated that a defendant who pleaded guilty after the judge had participated in plea discussions was permitted to replead without having to show actual prejudice. Anderson, 993 F.2d at 1438-39; Bruce, 976 F.2d at 558. In the case before us, Defendant rejected the plea agreement offered and went to trial with the same judge presiding over the trial.
¶ 23 In 1997, the prohibition of Rule 17.4(a), precluding judges from participating in plea negotiations, was lifted temporarily under an "experimental rule." See Ariz.R.Crim.P. 17.4(a) (1998). Under the new Rule 17.4(a), in effect between February 1, 1997, and January 31, 1999, judges may participate in settlement discussions. Even the trial judge may participate if the parties consent. Moreover, the old Rule 17.4(a)'s prohibition on judicial participation in settlement discussions was waived in Pima County, pursuant to Administrative Order No. 92-27, and was waived on a temporary basis in Coconino County, pursuant to Administrative Order No. 94-62. Defendant's argument that judicial participation in plea discussions is, by itself, fundamental error is seriously undermined by exceptions to the rule, sanctioned by our supreme court.
¶ 24 Defendant also argues that, by participating in unsuccessful plea discussions, a trial judge may develop a stake in the process, thereby placing his objectivity and impartiality in question should he subsequently preside over the trial of a defendant who rejected the plea proposal. Defendant's argument is not without support. The Ninth Circuit has expressed concern that judicial involvement in plea negotiations can affect a judge's objectivity when the negotiations have failed.
[J]udicial participation in plea discussions that ultimately fail inherently risks the loss of a judge's impartiality during trial, not only because he becomes aware of the defendant's possible interest in pleading guilty, but also because he may view unfavorably the defendant's rejection of the proposed agreement.
Further, involvement in plea negotiations diminishes the judge's objectivity in post-trial matters such as sentencing and motions for a judgment of acquittal.
Bruce, 976 F.2d at 557-58 (internal citations, quotations, and footnotes omitted). However, at least two federal circuits have held that judicial participation in unsuccessful plea discussions does not require reversal of a conviction after trial absent a showing of actual prejudice. See United States v. Diaz, 138 F.3d 1359, 1363 (11th Cir. 1998), cert. denied, 119 S. Ct. 259 (1998); United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995); United States v. Adams, 634 F.2d 830, 842 (5th Cir. 1981).
¶ 25 Arizona law likewise requires a showing of prejudice to a substantial right. See A.R.S. § 13-3987 (1989). Bias or prejudice is a hostile feeling or ill will toward a litigant. See State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984), overruled on other grounds by State v. Noble, 152 Ariz. 284, 288, 731 P.2d 1228, 1232 (1987). Defendant states generally that "[t]he prejudice to the accused is unmistakable."
¶ 26 Defendant contends he was prejudiced because he was found guilty. However, Defendant was found guilty by a jury, not the judge, and such a finding does not, by itself, show prejudice to Defendant because of judicial bias. Defendant also claims prejudice because, after participating in the settlement conference, the trial judge ruled on the merits of Defendant's voluntariness motion, the validity of his out-of-state prior conviction, and the extent to which the State would be permitted to impeach Defendant. Defendant also asserts as support for his claim of prejudice that "numerous trial objections did not go [defense counsel's] way." Defendant, however, has assigned error to and raised on appeal only one ruling by the trial court, which we will address separately. He assigns no error to any of these other rulings that he asserts prejudiced him and resulted from judicial bias. Non-erroneous adverse rulings cannot be the basis of a claim of bias. See State v. Curry, 187 Ariz. 623, 631, 931 P.2d 1133, 1141 (App. 1996) ("We fail to understand how adverse rulings to which a party assigns no error can nevertheless amount to bias on the part of the judge.").
¶ 27 Defendant instead argues that, because bias is hard to show, it must be presumed. The presumption in Arizona, however, is that trial judges are free of bias and prejudice, and the party claiming otherwise must prove bias by a preponderance of the evidence. See Perkins, 141 Ariz. at 286, 686 P.2d at 1256; Miller v. Superior Court, 189 Ariz. 127, 129, 938 P.2d 1128, 1130 (App. 1997). However, that burden of proof shifts when the trial judge has violated a rule of criminal procedure and the State agrees he has done so. Because Rule 17.4(a) was violated, prejudice to Defendant must be presumed. The State then has the burden of rebutting the presumption of prejudice. The State argues that if Defendant felt the trial judge was biased because of its participation in the plea negotiations, Defendant's remedy was to move for a change of judge for cause. Ariz.R.Crim.P. 10.1. See, e.g., State v. Teel, 681 A.2d 974, 978 (Conn.App. 1996) (claim that judge improperly presided over trial after participating in plea negotiations was not properly brought as motion to disqualify for lack of impartiality). Defendant, who was at all times represented by counsel, did not do so. However, the judge erred and Defendant need not take steps to correct an error by the judge.
¶ 28 The judge improperly participated in the plea discussions and was clearly of the opinion that Defendant should accept the State's offer. We find that fundamental error arose from the judge's actions in participating in the settlement conference and subsequently presiding over the trial.
II. Opinion Testimony that Defendant's Conduct Was Consistent with That of a Person "Impaired by Alcohol to the Slightest Degree"
¶ 29 Although we reverse on the first issue, we discuss this issue because it may arise again on retrial. Defendant argues that the trial judge erred in permitting Officer Boyd to testify that Defendant's conduct was consistent with the behavior of individuals who were impaired to the slightest degree. We review a trial judge's ruling on the admission of evidence for clear abuse of discretion. See State v. Atwood, 171 Ariz. 576, 634, 832 P.2d 593, 651 (1992), cert. denied, 506 U.S. 1084 (1993).
¶ 30 Opinion testimony on an ultimate issue of fact is admissible. Ariz.R.Evid. 704. The Arizona Supreme Court has recommended that, in DUI cases, trial courts exercise caution in admitting such evidence with respect to the intoxication of the defendant. See Fuenning v. Superior Court, 139 Ariz. 590, 601, 680 P.2d 121, 132 (1983). Fuenning did not, however, declare such evidence inadmissible. See State v. Bojorquez, 145 Ariz. 501, 502, 702 P.2d 1346, 1347 (App. 1985) (finding no per se rule in Fuenning that an officer's opinion on intoxication was never admissible). Fuenning advised:
When, in a DWI prosecution, the officer is asked whether the defendant was driving while intoxicated, the witness is actually being asked his opinion of whether the defendant was guilty. In our view, such questions are not within the spirit of the rules . . . . It ordinarily would be proper to ask the [officer] . . . whether he or she was familiar with the symptoms of intoxication and whether the defendant displayed such symptoms. The witness might be allowed to testify that defendant's conduct seemed influenced by alcohol. However, testimony which parrots the words of the statute moves from the realm of permissible opinion which "embraces an" issue of ultimate facts to an opinion of guilt or innocence, which embraces all issues.
Fuenning, 139 Ariz. at 605, 680 P.2d at 136 (citations omitted).
¶ 31 Following Fuenning, we have found that admission of testimony that a DUI defendant was intoxicated did not necessarily warrant a new trial. See Bojorquez, 145 Ariz. at 503, 702 P.2d at 1348. However, in State v. Lummus, we found that testimony rating a defendant's intoxication as "ten plus" on a scale of one to ten was the equivalent of stating that defendant was extremely intoxicated and was improper. 190 Ariz. 569, 571, 950 P.2d 1190, 1192 (App. 1997). In State v. White, we found that testimony that a defendant was "under the influence" was impermissible, because that phrase parroted the words of the DUI statute, a situation that Fuenning cautioned could make the opinion an impermissible opinion on guilt or innocence. 155 Ariz. 452, 457, 747 P.2d 613, 618 (App. 1987).
¶ 32 In each of these cases, the witness testified that the defendant was intoxicated or under the influence. Those are not the facts in the case before us. Defendant was charged under A.R.S. section 28-692(A)(1) (Supp. 1997), which makes it unlawful to drive while under the influence of alcohol "if . . . impaired to the slightest degree." Officer Boyd did not testify that Defendant was intoxicated or "impaired to the slightest degree." He testified that in his career he had come in contact with individuals who were under the influence or impaired by alcohol and that he had observed signs and symptoms of impairment in individuals. He testified about Defendant's behavior, demeanor, and physical appearance, and then testified that, based on his observations, Defendant exhibited signs and symptoms consistent with someone who was impaired by alcohol to the slightest degree. The officer did not testify on the ultimate issue of whether Defendant was or was not actually impaired. This testimony is acceptable under Fuenning, which stated it would be proper to ask a witness if he was familiar with symptoms of intoxication and whether a defendant displayed those symptoms. 139 Ariz. at 605, 680 P.2d at 136.
¶ 33 The trial court is in the best position to decide the admissibility of questions concerning intoxication. Bojorquez, 145 Ariz. at 503, 702 P.2d at 1348. We find no abuse of discretion in the court's decision to admit this testimony. Officer Boyd testified that Defendant had swerved across the center line, had driven the wrong way down a one-way street, did not know he was going the wrong way, smelled of alcohol, had bloodshot watery eyes, swayed when he stood, had slow slurred speech, exhibited mood swings, refused a breath test, and fell asleep on the bathroom floor. In cross-examination, Defendant asked questions suggesting that his driving errors were caused by being distracted by a passenger, that his eyes could have been bloodshot because of fatigue, eye strain, or an eye infection, and that he fell asleep because he had been up all day. We believe that even without Officer Boyd's opinion that Defendant's behavior was consistent with that of someone impaired, the jury would have so found.
CONCLUSION
¶ 34 Because the trial judge erred by participating in plea discussions before trial and subsequently presiding over the trial, in violation of Rule of Criminal Procedure 17.4(a), we hold the case must be reversed and remanded for new proceedings. We find no abuse of discretion in the court's admission of testimony that Defendant exhibited behavior consistent with that of someone impaired to the slightest degree.
____________________________________ SARAH D. GRANT, Judge
CONCURRING:
____________________________________ RUDOLPH J. GERBER, Presiding Judge
A.
¶ 35 I concur in the decision to reverse, but my reasons differ somewhat from those of the majority. I agree that the trial court committed reversible error when, without the express consent of the defendant, it conducted a settlement conference, encouraged the defendant to accept a plea bargain, and then presided over his trial. I do not believe, however, that it is necessary in such instances either for a defendant to prove prejudice or for the State to disprove prejudice; to require such a showing on either part is neither practical nor wise. This is rather an occasion for a bright-line rule.
¶ 36 Plea bargains are entered in approximately 95% of the criminal cases in Maricopa County, and in comparably high percentages elsewhere in the state. Our criminal justice system could not function at current resource levels if any substantial percentage of defendants resisted plea bargains and exercised their right to go to trial. In a system as dependent as ours upon plea bargains, the coercive potential is so substantial and the appearance of justice so greatly strained when the very judge conducts a criminal settlement conference who will preside over the trial, that we can permit this practice, if at all, only when it occurs in full compliance with applicable rules, and with the express consent of the defendant, entered upon the record in open court.
¶ 37 I would hold that, in the absence of such a record, it is fundamental and structural error for the settlement judge to preside over the trial.
B.
¶ 38 I agree that the court should reach the second issue to provide guidance on remand, but I respectfully dissent from the majority's resolution. It would have been permissible, in my view, for the police officer to testify, based on training and experience, that the defendant's behavior was consistent with that of a person impaired by consumption of alcohol. But the State gratuitously and improperly "parrot[ed] the words of the statute," Fuenning, 139 Ariz. at 605, 680 P.2d at 136, when it elicited testimony that the defendant's behavior was consistent with "impairment to the slightest degree." And by precisely parroting the statute, the State crossed the Fuenning line that separates "the realm of permissible opinion which 'embraces an' issue of ultimate fact" from "an opinion of guilt or innocence, which embraces all issues." Id.
_____________________________________ NOEL FIDEL, Judge