Opinion
No. 2 CA-CR 2013-0298
07-17-2014
THE STATE OF ARIZONA, Appellee, v. AUBREY JAMES TUCEY, Appellant.
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee The Law Offices of Stephanie K. Bond, P.C., Tucson By Stephanie K. Bond Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20120085001
The Honorable Richard S. Fields, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee
The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
MEMORANDUM DECISION
Judge Vásquez authored the decision of the Court, in which Presiding Judge Kelly and Judge Howard concurred. VÁSQUEZ, Judge:
¶1 After a bench trial, Aubrey Tucey was convicted of possession of a deadly weapon by a prohibited possessor. The trial court sentenced him to a presumptive 4.5-year term of imprisonment. On appeal, Tucey argues the court erred by denying his motions to dismiss based on (1) the state's disclosure violations and prosecutorial misconduct and (2) a denial of his speedy trial rights. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining Tucey's conviction. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In December 2011, officers were conducting visual and electronic surveillance of a vehicle occupied by Tucey, Andrew Balta, and Tyne Osborne. The tracking device attached to the vehicle indicated it had circled in a neighborhood and stopped at a house later reported to have been burglarized. Shortly thereafter, officers followed the vehicle to a pawn shop. Balta went inside and pawned jewelry that had been stolen during the burglary. The three men then drove to a hotel, where officers watched as Tucey carried a gray rifle case to a room. After obtaining a warrant, officers searched the room and located, among other items, a shotgun and a rifle. The residents of the house where the burglary had occurred identified the pawned jewelry and firearms as belonging to them.
¶3 A grand jury indicted Tucey for one count of first-degree burglary, one count of trafficking in stolen property, and two counts of possession of a deadly weapon by a prohibited possessor. The state gave notice of its intent to call Balta as a witness at trial. During a pretrial interview, Balta told Tucey's counsel that he thought the charges against him were "permanently dismissed." Tucey's counsel suggested the charges could be refiled and expressed her concerns about Balta making incriminating statements during the interview without an attorney present. The interview was terminated, and the trial court appointed counsel for Balta. The parties interviewed Balta on two subsequent occasions. During one of those interviews, Balta stated he had an immunity agreement with the state to not be charged in this case; the prosecutor said nothing in response. When later confronted by Tucey's counsel, however, the prosecutor denied offering Balta immunity.
¶4 Tucey filed a motion to dismiss the charges against him with prejudice or alternatively to preclude Balta from testifying as a witness, arguing the prosecutor had offered an immunity agreement to Balta and intentionally failed to disclose it. After a hearing, the trial court denied the motion but granted Tucey leave to renew it if he could provide evidence that Balta's counsel "shared . . . Balta's belief that he would not be prosecuted in exchange for his testimony." Tucey refiled his motion, attaching an electronic mail from Balta's counsel stating he thought there was an immunity agreement. In his motion, Tucey also argued the state had failed to disclose Balta's criminal history.
¶5 The trial court ordered an evidentiary hearing during which Balta's counsel and the prosecutor testified. Balta's counsel stated he had a verbal agreement with the prosecutor that Balta would not be charged in this case in exchange for his testimony, although he admitted they did not use "the magic word 'immunity.'" The prosecutor testified that there is a "difference between a decision not to charge[] and a decision to offer immunity" and that this was a case of the former. The court took the matter under advisement, vacating the trial set for the following week, despite Tucey's assertion of his right to a speedy trial, and directing the parties to submit supplemental briefs.
¶6 In its under-advisement ruling, the trial court found the prosecutor had failed to disclose "an implied agreement" with Balta. The court sanctioned the state by precluding Balta as a witness and imposing a fine of $500. The court concluded that the state's failure to disclose Balta's criminal history was moot because the court had precluded the state from using Balta as a witness at trial. The court also found there was no prosecutorial misconduct because the prosecutor did not act "with the requisite knowledge that his actions were improper" and did not "pursue[] his actions with an improper purpose." Lastly, the court found no violation of Tucey's speedy trial rights, reasoning that the delay had not been unreasonably lengthy, that Tucey had not been prejudiced, and that the interests of justice would not be served by dismissal.
¶7 The case remained inactive for two months, until the state requested a status conference "for the purpose of selecting a trial date." Tucey subsequently filed a motion to dismiss based on a speedy trial violation. After a hearing, the trial court denied the motion. The court stated that the delay after its under-advisement ruling was "probably [its] fault" and noted that it "should have set a status conference." The court suggested that Tucey was entitled to a dismissal of the case without prejudice but concluded "that [remedy] doesn't do anybody any good here" because under the circumstances dismissal would be without prejudice and the state could simply refile the charges.
¶8 Before trial, on the state's motion, the court dismissed the charge of trafficking in stolen property. Tucey waived his right to a jury trial on the prohibited-possessor charges. A jury acquitted Tucey of first-degree burglary, and the court found him guilty of only one of the prohibited-possessor charges. The court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Tucey's notice of appeal states he is appealing "the judgment rendered on or about February 28, 2013 . . . in which he was acquitted of all charges except for a conviction on a single count of Prohibited Possessor." See State v. Whitman, 234 Ariz. 565, ¶¶ 6-7, 20, 324 P.3d 851, 852, 854 (2014) (notice of appeal filed from entry of judgment and sentence, which occurs upon oral pronouncement of sentence). Although his notice does not refer to the entry of judgment and sentence, it was nonetheless timely filed after the entry of sentence. See Ariz. R. Crim. P. 31.3. We therefore consider this a mere technical error that did not prejudice the state. See State v. Good, 9 Ariz. App. 388, 392, 452 P.2d 715, 719 (1969).
Disclosure Violations and Prosecutorial Misconduct
¶9 Tucey argues the trial court erred by denying his motion to dismiss the charges for the state's disclosure violations and prosecutorial misconduct. Specifically, he claims the state repeatedly failed to disclose Balta's immunity agreement and criminal history. We review a trial court's ruling on a motion to dismiss for an abuse of discretion. State v. Trani, 200 Ariz. 383, ¶ 5, 26 P.3d 1154, 1155 (App. 2001).
¶10 "If a party fails to make a disclosure required by Rule 15 any other party may move to compel disclosure and for appropriate sanctions." Ariz. R. Crim. P. 15.7. Possible sanctions include precluding the evidence, dismissing the case with or without prejudice, and imposing costs. Id. "If a sanction is warranted, it should have a minimal effect on the evidence and merits of the case." State v. Towery, 186 Ariz. 168, 186, 920 P.2d 290, 308 (1996). The imposition and choice of sanctions are within the trial court's sound discretion. State v. Jackson, 186 Ariz. 20, 24, 918 P.2d 1038, 1042 (1996). "Absent a showing of prejudice, this court will not find an abuse of discretion." State v. Floyd, 120 Ariz. 358, 361, 586 P.2d 203, 206 (App. 1978).
¶11 Here, Tucey challenges the trial court's choice of sanctions—the preclusion of Balta as a witness and a $500 fine—for the state's failure to disclose "an implied [immunity] agreement" with Balta. At the evidentiary hearing, the prosecutor testified that he no longer planned to call Balta as a witness at trial, and Balta's counsel testified that, even if called as a witness, Balta would invoke his Fifth Amendment right against self-incrimination and refuse to testify. Tucey therefore maintains the court's preclusion of Balta as a witness was an "insignificant" sanction. He insists that "[d]ismissal with prejudice was the appropriate sanction given the totality of the circumstances."
Although the prosecutor testified at the hearing that he "will not be calling [Balta] at trial," the state later filed a supplemental brief suggesting that he may be called. And, Balta's counsel believed that Balta may be called as a rebuttal witness.
¶12 Tucey, however, does not assert that he suffered any prejudice. See Floyd, 120 Ariz. at 361, 586 P.2d at 206; see also State v. Martinez-Villareal, 145 Ariz. 441, 448, 702 P.2d 670, 677 (1985). The argument is therefore waived on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi) (appellant's brief shall contain argument); State v. Larson, 222 Ariz. 341, ¶ 23, 214 P.3d 429, 434 (App. 2009) (argument not raised in opening brief waived). In any event, no prejudice exists.
¶13 To demonstrate prejudice from a disclosure violation, a defendant must show surprise or delay affecting the defendant's right to a fair trial. See Martinez-Villareal, 145 Ariz. at 448, 702 P.2d at 677; see also State v. Gambrell, 116 Ariz. 188, 190, 568 P.2d 1086, 1088 (App. 1977) (considering whether state's nondisclosure of witness deprived defendant of opportunity to prepare for witness's testimony). Here, as the state points out, any issues concerning Balta's immunity agreement and criminal history were raised by Tucey's counsel and fully resolved before trial. And, the court cured the nondisclosure by precluding Balta from testifying. See State v. Krone, 182 Ariz. 319, 322, 897 P.2d 621, 624 (1995) (continuance or preclusion would have cured harm caused by untimely disclosed exhibit). It is doubtful that Tucey was prejudiced by the nondisclosure given that the jury acquitted Tucey of the first-degree burglary charge. Absent a finding of any prejudice, we find no abuse of the trial court's discretion. See Jackson, 186 Ariz. at 24, 918 P.2d at 1042.
¶14 For similar reasons, we reject Tucey's contention of prosecutorial misconduct. He argues the prosecutor committed misconduct by failing to disclose Balta's immunity agreement and criminal history and by failing "to fix his mistake." The trial court, however, found no misconduct, reasoning that the prosecutor did not act with "the requisite knowledge that his actions were improper" and instead attributing the failure to inexperience and a lack of supervision.
¶15 "Prosecutorial misconduct '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.'" State v. Aguilar, 217 Ariz. 235, 238-39, 172 P.3d 423, 426-27 (App. 2007), quoting Pool v. Superior Court, 139 Ariz. 98, 108-09, 677 P.2d 261, 271-72 (1984). But, even assuming the error rises to the level of prosecutorial misconduct, it is harmless if we can say beyond a reasonable doubt that it did not contribute to or affect the verdict. State v. Hughes, 193 Ariz. 72, ¶ 32, 969 P.2d 1184, 1192 (1998); State v. Blackman, 201 Ariz. 527, ¶ 59, 38 P.3d 1192, 1206 (App. 2002).
¶16 We agree with the trial court's conclusion that the state's failure to disclose Balta's immunity agreement and criminal history did not rise to the level of prosecutorial misconduct. In any event, it was harmless. The immunity agreement and criminal history related specifically to Balta, who did not testify at Tucey's trial. The prosecutor's failure to disclose the evidence therefore did not contribute to or affect the verdict. See Hughes, 193 Ariz. 72, ¶ 32, 969 P.2d at 1192.
Speedy Trial
¶17 Tucey contends the trial court erred by denying his motion to dismiss the charges against him based on his constitutional rights to a speedy trial. We review de novo a trial court's ruling on whether a defendant's speedy trial rights were violated to the extent it involves constitutional issues and for an abuse of discretion to the extent it involves factual determinations. State v. Parker, 231 Ariz. 391, ¶ 8, 296 P.3d 54, 61 (2013).
¶18 The United States and Arizona Constitutions guarantee the right to a speedy trial. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. In determining if a constitutional speedy trial violation occurred, a court considers: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant demanded a speedy trial; and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530 (1972); State v. Schaaf, 169 Ariz. 323, 327, 819 P.2d 909, 913 (1991). If a defendant demonstrates the delay was "presumptively prejudicial" under the first factor, the court must consider the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 651-52 (1992); see also Parker, 231 Ariz. 391, ¶ 9, 296 P.3d at 61.
¶19 Tucey was arrested on December 28, 2011 and indicted on January 9, 2012. His trial began on February 26, 2013, over a year after his arrest. In April 2012, the trial court granted the state's motion to continue the trial, moving the original trial date from May 1, 2012 to May 22, 2012. Tucey subsequently filed a motion to continue, which the court granted, resetting the trial for September 5, 2012. The court, however, vacated that trial date during the evidentiary hearing on Tucey's motion to dismiss. The court's ruling on that motion issued on October 22, 2012. The state subsequently requested a status conference in December 2012, and the court set the trial for February 26, 2013. Because Tucey's trial occurred more than one year after his arrest and arraignment, the state concedes the delay was "presumptively prejudicial." See Doggett, 505 U.S. at 652 n.1. We agree, and therefore address the remaining Barker factors. See McCutcheon v. Superior Court, 150 Ariz. 312, 316, 723 P.2d 661, 665 (1986) (constitutional right to speedy trial arises when person accused by formal indictment, information, or actual restraint).
¶20 The second Barker factor requires us to consider the reasons for the delay. Tucey argues "the reason for the delay was due to the 'questionable behavior by the State' regarding the failure to disclose the immunity agreement, attempting to find Balta to testify, appointment of counsel for Balta and the failure to disclose Balta's criminal history." The state filed the first motion to continue in April 2012, but that was based on the state's need to depose Balta, who had failed to appear for two prior interviews, and delayed the trial by only three weeks. See Barker, 407 U.S. at 531 (missing witness justifies delay). Because of his motion to continue, Tucey admits causing the delay from May 22 through September 5. See Vermont v. Brillon, 556 U.S. 81, 90 (2009) (defense delay weighs against defendant). And, as the state points out, "most of the litigation regarding the disclosure violations . . . occurred within that admittedly excluded time." As for the two-month lapse between the trial court issuing its under-advisement ruling and the state requesting a status conference, the court accepted responsibility for that delay. See Barker, 407 U.S. at 531 (neutral reasons for delay weighted less heavily).
¶21 The third Barker factor requires the defendant to assert his right to a speedy trial. See Schaaf, 169 Ariz. at 327, 819 P.2d at 913 ("Generally, the right to a speedy trial is waived unless asserted promptly."). The state concedes that Tucey "asserted his speedy trial rights" but nonetheless suggests he did not do so "promptly." We disagree with this contention, however, because Tucey asserted his right in April 2012, when the court set the first trial date and again when the state filed its first motion to continue. See Parker, 231 Ariz. 391, ¶ 15, 296 P.3d at 62 (delay in asserting right that exceeded more than two years weighted against defendant).
¶22 The fourth and most important Barker factor requires us to consider whether the defendant was prejudiced by the delay. State v. Leslie, 147 Ariz. 38, 44, 708 P.2d 719, 725 (1985). "We assess prejudice in light of the interests that the speedy trial right protects against: (1) 'oppressive pretrial incarceration,' (2) 'anxiety and concern of the accused,' and (3) 'the possibility that the defense will be impaired' by diminishing memories and loss of exculpatory evidence." Parker, 231 Ariz. 391, ¶ 16, 296 P.3d at 62, quoting Barker, 407 U.S. at 532. Tucey contends that he was prejudiced by the delay because of "the additional stress and anxiety" and "the impairment on his freedom and liberty." He additionally contends he had to expend time and resources "fighting the disclosure violation due to prosecutorial misconduct" rather than preparing for trial.
¶23 Although important, stress and anxiety alone are insufficient to demonstrate prejudice. State v. Soto, 117 Ariz. 345, 348, 572 P.2d 1183, 1186 (1977). And, Tucey has only summarily asserted he suffered "additional stress and anxiety" without offering any further explanation. See id. (rejecting defendant's claim of family's anxiety because defendant did not contribute to family's finances). Moreover, although Tucey was initially subjected to pretrial incarceration, he was released in May 2012, upon the posting of bond. He only returned to custody in February 2013, approximately two weeks before trial. He was therefore out of custody during most of the pretrial proceedings.
¶24 And Tucey has not established that his defense was harmed by the delay. See Soto, 117 Ariz. at 348, 572 P.2d at 1186; see also State v. Spreitz, 190 Ariz. 129, 140, 945 P.2d 1260, 1271 (1997) (defendant's five years of incarceration increased anxiety, but delay did not prejudice his ability to defend). Tucey maintains that he had to expend time and resources on the disclosure issues rather than preparing for trial, but he does not explain how his defense suffered as a result. Indeed, Tucey has not argued "that he was unable to fully investigate his case, that he could not adequately prepare for trial, that he was unable to locate evidence or witnesses, that he lost the opportunity to present any evidence or testimony or that he otherwise could not present his entire defense as intended." State v. Wassenaar, 215 Ariz. 565, ¶ 20, 161 P.3d 608, 615 (App. 2007).
¶25 Having weighed the four factors, we conclude there was no violation of Tucey's constitutional rights to a speedy trial. See Parker, 231 Ariz. 391, ¶ 8, 296 P.3d at 61.
¶26 Tucey also seems to suggest the trial court erred by denying his motion to dismiss the charges against him based on his right to a speedy trial pursuant to Rule 8, Ariz. R. Crim. P. We will uphold a trial court's Rule 8 speedy trial determination absent an abuse of discretion and resulting prejudice. Spreitz, 190 Ariz. at 136, 945 P.2d at 1267.
In his opening brief, Tucey mentions Rule 8 without offering any analysis. We therefore could deem the argument waived on appeal. See Ariz. R. Crim. P. 31.13(c)(1)(vi); Larson, 222 Ariz. 341, ¶ 23, 214 P.3d at 434. However, because he appears to have incorporated some of his Rule 8 discussion in his constitutional analysis, we will address the issue.
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¶27 Pursuant to Rule 8, out-of-custody defendants must be tried within 180 days from arraignment. Ariz. R. Crim. P. 8.2(a)(2). The right to a speedy trial under Rule 8 is stricter than the constitutional right. Spreitz, 190 Ariz. at 136, 945 P.2d at 1267. Once a court determines Rule 8 has been violated, it "shall on motion of the defendant, or on its own initiative, dismiss the prosecution with or without prejudice." Ariz. R. Crim. P. 8.6; see also Humble v. Superior Court, 179 Ariz. 409, 415, 880 P.2d 629, 635 (App. 1993) (trial court has discretion to dismiss with or without prejudice).
¶28 Here, the trial court apparently concluded Tucey was entitled to a dismissal of the case without prejudice under Rule 8 because the time from arraignment to trial exceeded 180 days. However, the court declined to dismiss the case, reasoning that a dismissal "doesn't do anybody any good here." See State v. Heise, 117 Ariz. 524, 525, 573 P.2d 924, 925 (App. 1977) (if court dismisses without prejudice, state can refile). "Rule 8.6 is unequivocal" and requires the court to dismiss a case with or without prejudice if it finds a violation. State v. Estrada, 187 Ariz. 490, 492, 930 P.2d 1004, 1006 (App. 1996). Nevertheless, Tucey has not explained how the "technical speedy trial error in this case prejudiced his defense in any way or deprived him of a fair trial." State v. Vasko, 193 Ariz. 142, ¶ 31, 971 P.2d 189, 196 (App. 1998). And, for the reasons discussed above, we can discern no prejudice. We therefore uphold the trial court's ruling. See Spreitz, 190 Ariz. at 136, 945 P.2d at 1267.
Disposition
¶29 For the reasons stated above, we affirm the conviction and sentence.