Opinion
No. 1 CA-CR 17-0468
02-28-2019
STATE OF ARIZONA, Appellee, v. BRACK CONRAD PRITCHARD, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael Valenzuela Counsel for Appellee Craig Williams Attorney at Law, P.L.L.C., Prescott Valley By Craig Williams Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300CR201501499
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee Craig Williams Attorney at Law, P.L.L.C., Prescott Valley
By Craig Williams
Counsel for Appellant
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined. JONES, Judge:
¶1 Brack Pritchard appeals his conviction and sentence for possession of drug paraphernalia, arguing the trial court erred by: (1) denying his motion for change of judge, (2) declining to preclude a late-disclosed laboratory report, (3) denying his motion for mistrial, and (4) dismissing other charges without prejudice. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On November 25, 2015, a Yavapai County Sheriff's Office deputy responded to a report of a fire at Pritchard's residence. In the course of investigating the fire, the deputy detained Pritchard and, after advising Pritchard of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 445 (1966), informed Pritchard that he had found a pipe in Pritchard's pocket. Pritchard responded, "I know, I know, man. It's okay." When later asked about his meth use, Pritchard exclaimed, "I'm the dope on dope. Everyone knows that about me."
We view the facts in the light most favorable to upholding the verdict and resolve all reasonable inferences against Pritchard. State v. Harm, 236 Ariz. 402, 404, ¶ 2 n.2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶3 Pritchard was indicted on one count each of arson of an occupied structure, criminal damage, and possession of drug paraphernalia. One month before the February 2017 trial, the State requested a continuance on the grounds that it had recently received an arson investigation report conducted by an independent third party. After Pritchard declined to waive his speedy trial rights, the court granted the State's motion to dismiss the arson and criminal damage charges without prejudice over Pritchard's objection.
¶4 Two weeks before trial, the State disclosed a scientific examination report concluding the pipe found in Pritchard's pocket contained methamphetamine residue. Although the State conceded at trial that the disclosure was untimely, the trial court overruled Pritchard's objections to the introduction of the report and testimony from the criminalist who prepared it.
¶5 Trial commenced as scheduled. During the State's direct examination of the deputy, the following transpired:
Q. Based on what you observed with the defendant on November 25th, were you concerned that he was under the influence of methamphetamine?Pritchard objected and moved unsuccessfully for a mistrial based upon a perceived reference to Pritchard's prior methamphetamine use. The State continued questioning the deputy but did not return to the topic of whether the pipe was new or used.
A. I had some concerns, just as a — from past information, yes.
Q. What about the fact that he possessed what you thought was a methamphetamine pipe?
A. Yeah. Any kind of paraphernalia or like that would lead — be a little more suggestive that somebody was using methamphetamine.
Q. And is it fair to say that that was not a new pipe?
¶6 On the third day of trial, Pritchard learned the trial judge had discussed the case with another superior court judge who had been the Yavapai County Public Defender when the case began. Pritchard was permitted to question the second judge, on the record and outside the presence of the trial judge, regarding the substance of their communications. According to the second judge, the judges exchanged emails and had a telephone conversation relating to a proposed jury instruction and a scheduling conflict. The trial judge did not provide the second judge with the defendant's name or the facts of the case, and the second judge did not recall Pritchard's case from his previous role as the Public Defender. Pritchard then moved for a change of judge for cause, alleging the trial judge was biased and prejudiced. The motion was denied after an evidentiary hearing. See Ariz. R. Crim. P. 10.1(c).
Absent material changes from the relevant date, we cite the current version of rules and statutes.
¶7 The jury found Pritchard guilty of possession of drug paraphernalia. The trial court sentenced Pritchard to eighteen months' imprisonment and credited him with 588 days of presentence incarceration. Pritchard timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Judicial Bias
¶8 Pritchard argues he did not receive a fair trial because the trial judge was biased. "We review a trial court's ruling on claims of judicial bias for an abuse of discretion." State v. Ramsey, 211 Ariz. 529, 541, ¶ 37 (App. 2005) (citing State v. Schackart, 190 Ariz. 238, 257 (1997)).
¶9 "A trial judge is presumed to be free of bias and prejudice." State v. Hurley, 197 Ariz. 400, 404, ¶ 24 (App. 2000) (citing State v. Medina, 193 Ariz. 504, 510, ¶ 11 (1999)). To overcome this presumption, a party requesting recusal must "set forth a specific basis for the claim of partiality and prove by a preponderance of the evidence that the judge is biased or prejudiced." Medina, 193 Ariz. at 510, ¶ 11 (citing State v. Rossi, 154 Ariz. 245, 247 (1987), and Ariz. R. Crim. P. 10.1). Specifically, the moving party must establish "a hostile feeling or spirit of ill-will, or undue friendship or favoritism, towards one of the litigants." In re Guardianship of Styer, 24 Ariz. App. 148, 151 (1975).
¶10 Pritchard fails to overcome the presumption of neutrality. The record reflects the judges discussed legal issues and a scheduling conflict associated with Pritchard's case, as authorized by the Arizona Code of Judicial Conduct. See Ariz. Code of Jud. Conduct Rule 2.9(A)(3) (permitting consultation amongst judges). The second judge did not know the communications related to Pritchard's case; nor did he recall discussing Pritchard's case with defense counsel while acting as the Public Defender. Moreover, there is no evidence to suggest the trial judge attempted to obtain confidential information about Pritchard's case from the second judge. Finally, we reject Pritchard's reference to adverse rulings as evidence of bias. See State v. Curry, 187 Ariz. 623, 631 (App. 1996) ("Disagreements over rulings are insufficient to support recusal."). On this record, the trial court did not abuse its discretion in denying Pritchard's motion for change of judge. See State v. Carver, 160 Ariz. 167, 173 (1989) ("Bare allegations of bias and prejudice, unsupported by factual evidence, are insufficient to overcome the presumption of impartiality and do not require recusal.").
II. Untimely Disclosure
¶11 Pritchard argues the trial court abused its discretion by denying his motion to preclude an untimely disclosed report indicating the pipe found in Pritchard's possession contained methamphetamine residue, and testimony from the criminalist who prepared the report. We review decisions regarding sanctions for untimely disclosure for an abuse of discretion. State v. Towery, 186 Ariz. 168, 186 (1996) (citing State v. Tucker, 157 Ariz. 433, 439 (1988)). "Denial of a sanction is generally not an abuse of discretion if the trial court believes the defendant will not be prejudiced." Id. (citation omitted).
¶12 Even assuming admission of the evidence was improper, Pritchard fails to prove prejudice. The record reflects the State indicated its intent to disclose the results of scientific tests or experiments in both its initial and supplemental disclosure statements. Thus, Pritchard was on notice that the State planned to use test results at trial. Additionally, Pritchard interviewed the criminalist before trial and declined the court's offer to continue trial so he could consult with an independent expert. Finally, other evidence admitted at trial was consistent with the scientific test results: the deputy identified the pipe as one commonly used to ingest methamphetamine, and testified that when he questioned Pritchard at the scene, Pritchard acknowledged he had a "meth pipe in his pocket" and was known as "the dope on dope." See State v. Shearer, 164 Ariz. 329, 340 (App. 1989) (holding that the introduction of otherwise inadmissible evidence was harmless when cumulative to and consistent with other evidence introduced at trial). Accordingly, we find no abuse of discretion.
III. Motion for Mistrial
¶13 Pritchard argues the trial court erred in denying his motion for mistrial based upon the deputy's purported reference to his past methampethamine use. We review the denial of a mistrial for an abuse of discretion. State v. Stuard, 176 Ariz. 589, 601 (1993) (citing State v. Koch, 138 Ariz. 99, 101 (1983)).
Pritchard also suggests the questions regarding the pipe amounted to prosecutorial misconduct. He does not develop the argument, however, and it is waived. See State v. Cotton, 228 Ariz. 105, 107, ¶ 4 n.3 (App. 2011) (citing State v. Sanchez, 200 Ariz. 163, 166, ¶ 8 (App. 2001)).
¶14 The jury is presumed to follow the trial court's directive that counsel's questions to witnesses are not evidence. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006) (citing State v. Ramirez, 178 Ariz. 116, 127 (1994)). Following Pritchard's objection, the deputy did not answer the question regarding the apparent condition of the pipe as "new." Thus, we presume the jury did not consider the State's unanswered question as evidence, and it does not provide a basis for a mistrial.
IV. Dismissal Without Prejudice
¶15 Finally, Pritchard argues the trial court erred by dismissing the arson and criminal damage charges without prejudice. Pritchard advanced this argument via special action when the State refiled those charges in a separate cause number. This Court accepted jurisdiction and denied relief, and our supreme court denied review. See Pritchard v. Ainley, 1 CA-SA 17-0094, 2017 WL 1489691, at *4, ¶ 16 (Ariz. App. Apr. 25, 2017) (mem. decision). Because the issue was already considered and resolved, collateral estoppel bars Pritchard from raising this claim. State v. Greenberg, 236 Ariz. 592, 598, ¶ 29 (App. 2015) ("Collateral estoppel generally means that the parties are barred from relitigating an issue in a future proceeding when the 'issue of ultimate fact has once been determined by a valid and final judgment.'") (quoting State v. Jimenez, 130 Ariz. 138, 140 (1981)).
CONCLUSION
¶16 Pritchard's conviction and sentence are affirmed.