Opinion
No. 1 CA-CR 14-0799
02-02-2016
STATE OF ARIZONA, Appellee, v. SILVERIO RIVAS-GOMEZ, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Ballecer & Segal, LLP Phoenix By Natalee Segal 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2014-111590-007
The Honorable Sherry K. Stephens, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee Ballecer & Segal, LLP Phoenix
By Natalee Segal
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined. GEMMILL, Judge:
¶1 Silverio Rivas-Gomez appeals his conviction on one count of sale or transportation of marijuana. He claims the trial court erred in allowing the State's expert witness to testify. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On March 9, 2014, border patrol agents witnessed a group of 13 individuals — some carrying large backpacks — walking toward Gila Bend. The individuals dropped their packs and fled as agents approached them, but the agents were able to apprehend all 13 of them. The backpacks were found to contain around 500 pounds of marijuana. Among the 13 apprehended was Rivas-Gomez, who was arrested and charged with one count of sale or transportation of marijuana.
¶3 The State's initial disclosure statement noticed Detective R.G. of the Maricopa County Sheriff's Office as a witness under Rule 15.1(b), but did not specify Detective R.G. as an expert. The disclosure statement contained a list of expert witnesses, with "Drug Trafficking Expert" noted as "TBD." A jury trial was set to start on September 18, 2014.
¶4 On September 12 the State filed an amended notice of disclosure that was similar to the initial notice of disclosure except that — among several other small changes — it named Detective R.G. as the drug trafficking expert on page 2 where previously it had said "TBD." Rivas-Gomez did not initially make any protest regarding the amended disclosure statement. During the second day of trial, Rivas-Gomez told the court that other than the criminalist, "I don't believe any experts have been noticed in this case." The State responded that Detective R.G. had been noticed as the drug trafficking expert, and Rivas-Gomez did not dispute it at that time.
¶5 The next day at trial, however, Rivas-Gomez asked the trial court to limit Detective R.G.'s testimony to the facts of his involvement in the case. Rivas-Gomez argued that the amended disclosure had been untimely filed on September 12, and moreover, it had not been mailed to him until September 15. Rivas-Gomez asserted that it would be unfair to allow Detective R.G. to testify as an expert because he — Rivas-Gomez — did not have the opportunity to bring in an expert witness on drug trafficking and also because when he had interviewed Detective R.G. prior to trial, it had only been pertaining to factual matters because Detective R.G. had not been identified as the drug trafficking expert at the time of the interview.
The disclosure statements in our record are not signed or dated, so we cannot determine from them when the State sent the amended disclosure to Rivas-Gomez. At trial, the State did not dispute that it had mailed the amended disclosure to Rivas-Gomez on the 15th, only three days before trial.
¶6 The State admitted the expert's name had been disclosed late, but it argued that Rivas-Gomez was aware that there would be a drug trafficking expert from the initial disclosure statement and that he would not be prejudiced by the late disclosure of the expert's name. The trial court overruled the objection but gave Rivas-Gomez the opportunity to re-interview Detective R.G. regarding his expert testimony.
¶7 Rivas-Gomez conducted another interview of Detective R.G. and thereafter renewed his objection because he claimed he should have been given the opportunity to have his own expert witness testify and that at this point in the trial it was too late to find one. The trial court decided that the objection should have been brought before the jury had been selected and again overruled the objection. The trial court did, however, offer to let Rivas-Gomez bring in an expert by the next day before closing arguments. The trial court also made a finding that Rivas-Gomez was indigent and offered to appoint the Office of Public Defense to help supply an expert witness.
¶8 Detective R.G. testified regarding the modus operandi of drug trafficking organizations. Specifically he testified that the chances are low that a person not actually involved in the drug trafficking operation would be crossing the desert with a group of traffickers. Rivas-Gomez did not call an expert witness to testify and rested his case.
¶9 The jury found Rivas-Gomez guilty, and the trial court sentenced him to the minimum sentence of four years with credit for 233 days of pre-sentence incarceration, plus fees. Rivas-Gomez timely appeals, and we have jurisdiction pursuant to Arizona Constitution Article 6, Section 9 and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) and 13-4032(5).
The number of pre-sentence incarceration days noted in the transcript was 322 days. However the minute entry and order of confinement reflect the pre-sentence incarceration credit as being only 233 days. Given the date of arrest and the date of sentencing, the 233 day figure is correct rather than 322. --------
ANALYSIS
¶10 Rivas-Gomez argues that the trial court erred in refusing to limit Detective R.G.'s testimony. We review a trial court's decision to impose sanctions for a disclosure violation for a clear abuse of discretion. State v. Hill, 174 Ariz. 313, 325 (1993). "An abuse of discretion occurs where the court's reasons for its actions are clearly untenable, legally incorrect, or amount to a denial of justice." State ex rel. Thomas v. Newell, 221 Ariz. 112, 114, ¶ 6 (App. 2009) (internal quotations omitted).
¶11 Arizona Rule of Criminal Procedure ("ARCP") 15.6(c) requires all disclosure to be completed at least seven days before trial. If a party wishes to disclose something after that deadline, it must request permission from the court. ARCP 15.6(d). The State does not dispute that it failed to disclose the name of the drug trafficking expert at least seven days before trial. However, the State argues that Rivas-Gomez's objection was asserted late and the trial court correctly offered Rivas-Gomez a remedy that minimized any effect on the merits of the case. The State further alleges that Rivas-Gomez did not make a good faith effort to resolve the disclosure issue as is required under State v. Roque, 213 Ariz. 193, 210-11, ¶¶ 50-51 (2006).
¶12 Rivas-Gomez relies on State v. Krone, 182 Ariz. 319 (1995), and compares the facts of Krone to those of the case at hand. The facts of each case, however, differ in several important ways. In Krone, the State's case relied almost entirely on bite mark evidence — although there was also some circumstantial evidence — and an exhibit tape that visually demonstrated the bite mark evidence was delivered to the defendant the day before trial. Id. at 320. Defense counsel had interviewed the State's expert who produced the tape but knew nothing of the tape itself. Id. Before the jury had been selected, the defendant moved to preclude the tape and, in the alternative, asked for a continuance to prepare his own tape. Id. The trial court ultimately denied both motions and allowed the State to use the video. Id.
¶13 Unlike Krone, Rivas-Gomez did not move to exclude the proffered testimony until the third day of trial, well after the jury had been selected. Also unlike Krone, the trial court in this case recognized that the State had erred in untimely disclosing the expert's name and gave Rivas-Gomez a chance to locate and retain an expert to rebut Detective R.G.'s testimony. The trial court first asked Rivas-Gomez:
[W]hy didn't you bring this to the Court's attention before we started trial because it seems to me that the appropriate sanction should be a continuance or moving the trial out as opposed to precluding the expert testimony all together?Then, after some discussion of the disclosure, the court went on to say:
[B]ecause there was late disclosure and you believe that an expert could assist your case, I'm going to give you an opportunity — we will adjourn as soon as the State rests today; and you will have an opportunity to see if you can find someone who can testify.The court also told Rivas-Gomez that it could make a finding that he was indigent and appoint the Office of Public Defense ("OPD") for the purpose of retaining an expert witness. The trial court itself contacted the OPD but was eventually informed that obtaining an expert was something defense attorneys ordinarily did rather than OPD.
¶14 After several brief discussions regarding finding an expert, however, Rivas-Gomez rested his case without calling any expert witness and without asking the court for additional time to locate and retain an expert.
¶15 "In selecting the appropriate sanction, the trial court 'should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible.'" Roque, 213 Ariz. at 210, ¶ 50 (quoting State v. Fisher, 141 Ariz. 227, 246 (1984)). The trial court should consider whether less stringent sanctions are available, how vital the precluded witness is to the case, whether the opposing party will be surprised and prejudiced by the testimony, whether the violation was motivated by bad faith or willfulness, and any other relevant factor. Id.
¶16 Although the disclosure was in fact untimely, Rivas-Gomez received notice from the first disclosure statement that the State intended to call a drug trafficking expert. That the identity of the expert was not known until just before trial did not detract from his ability to seek his own drug trafficking expert. While Rivas-Gomez did not have the opportunity to interview Detective R.G. regarding his specific expert opinion before trial, the court allowed Rivas-Gomez to re-interview him after the objection was brought to the court's attention. Furthermore, Rivas-Gomez did not take advantage of the trial court's offer to find an expert witness, but instead rested his case without renewing his request to continue the case to look for an expert.
¶17 Although the State failed to timely disclose the identity of its expert, Rivas-Gomez failed to object before a jury was selected and apparently did not pursue the trial court's offered remedy. The trial court considered the timing of the objection and the prejudice to Rivas-Gomez and determined that offering more time to re-interview the witness and find a defense expert was the proper sanction.
¶18 The record does not show that Rivas-Gomez was surprised or prejudiced by the State's late disclosure, nor does the record show that the late disclosure was motivated by bad faith or willfulness. The trial court balanced the available sanctions against the timing of Rivas-Gomez's objection, and concluded the appropriate remedy was to give Rivas-Gomez the opportunity to re-interview R.G. and find his own expert witness. On this record, we conclude the trial court acted within its discretion when it denied Rivas-Gomez's motion to preclude Detective R.G.'s expert testimony.
CONCLUSION
¶19 We therefore affirm Rivas-Gomez's conviction and sentence.