55 P.3d 774 (Ariz. 2002), CR-99-0243, State v. Minnitt

Docket Nº:CR-99-0243-AP.
Citation:55 P.3d 774, 203 Ariz. 431
Opinion Judge:[9] The opinion of the court was delivered by: Jones, Chief Justice
Party Name:STATE of Arizona, Appellee, v. Andre Lamont MINNITT, Appellant.
Attorney:[7] Janet A. Napolitano, Arizona Attorney General by Kent Cattani, Chief Counsel Capital Litigation Section, Dawn Northup, Assistant Attorney General; Phoenix. Attorneys for Appellee [8] Carla Ryan; Tucson. Attorney for Appellant
Case Date:October 11, 2002
Court:Supreme Court of Arizona

Page 774

55 P.3d 774 (Ariz. 2002)

203 Ariz. 431

STATE of Arizona, Appellee,


Andre Lamont MINNITT, Appellant.

No. CR-99-0243-AP.

Supreme Court of Arizona

Oct. 11, 2002.

Page 775

En Banc

[203 Ariz. 432] Janet A. Napolitano, Arizona Attorney General by Kent Cattani, Chief Counsel, Capital Litigation Section, Dawn Northup, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Carla Ryan, Tucson, Attorney for Appellant.

Page 776


JONES, Chief Justice.

¶ 1 The defendant, Andre Lamont Minnitt, was charged with three counts of first degree murder and seven counts of armed robbery, aggravated robbery, and burglary, all stemming from events at the El Grande Market in Tucson the night of June 24, 1992. In 1993, Minnitt was tried and convicted of the three murder counts and the seven non-homicide counts. He was sentenced to death for the murders. In 1996, this court reversed the convictions and sentences and remanded the case for a new trial due to juror coercion. State v. McCrimmon/Minnitt, 187 Ariz. 169, 927 P.2d 1298 (1996). He was tried again in 1997 in a proceeding that ended in a mistrial because the jury was unable to reach a verdict. He was tried a third time in April 1999. There, a jury found him guilty of all charges and the trial judge imposed death sentences for the three murder convictions and life imprisonment for the armed robbery, aggravated robbery, and burglary convictions. Because of the death sentence, direct appeal to this court is mandatory under Rules 26.15 and Rule 31.2(b) of the Arizona Rules of Criminal Procedure. We have jurisdiction pursuant to Arizona Constitution article VI, section 5.3, and Arizona Revised Statutes (A.R.S.) section 13-4031 (Supp.2001).

I. Issue Presented

¶ 2 Minnitt claims his third trial should have been barred by principles of double jeopardy because of prosecutorial misconduct at the two previous trials. Specifically, he argues that because the prosecutor engaged in egregious, intentional misdeeds aimed at prejudicing the jury and avoiding an acquittal in trials one and two, double jeopardy should apply here.

¶ 3 In response, the state argues that double jeopardy is not implicated, that the 1997 hung jury was not connected to the prosecutorial misconduct, and that the prosecutor did not act deliberately to avoid an acquittal.

¶ 4 We conclude that Arizona's constitutional protection against double jeopardy should have barred Minnitt's 1999 retrial because in both the 1993 and 1997 trials the prosecutor engaged in extreme misconduct that he knew was grossly improper and highly prejudicial, both as to the defendant and to the integrity of the system. Moreover, the trial judge found and the record substantiates that the prosecutor did so with knowing indifference to the danger of mistrial or reversal, if not a specific intent to cause a mistrial.

II. The Facts

A. Investigation of The El Grande Homicides

¶ 5 Between 9:30 p.m. and 10:00 p.m. on June 24, 1992, Queen Esther Ray loaned Christopher McCrimmon a 1977 Plymouth automobile that belonged to her boyfriend, David Durbin. She testified that McCrimmon asked to borrow the car for an hour to pick up some money. McCrimmon left with Minnitt and a third person known as Martinez. Ray later identified Martinez as Martin Soto-Fong. She testified that all three men returned about an hour later without the car.

¶ 6 At approximately 10:15 p.m., Tucson police were dispatched to the El Grande Market in response to a 911 call. There, they found the bodies of three victims: the store manager, the manager's uncle, and an employee. All three died from multiple gunshot wounds. Three blocks from the market police found an abandoned Plymouth. The car was later identified as belonging to David Durbin. Christopher McCrimmon's fingerprint was found on the outside of the driver's side window.

¶ 7 Tucson Police Detective Joseph Godoy was assigned as the lead detective on the case. On August 31, 1992, Godoy received a phone call from an unknown male caller who told him that a black male named "McKinney" and another individual nicknamed "Cha-Chi" were involved in the El Grande Market murders. Later that evening, Godoy met with Sergeant Zimmerling, who informed Godoy that he had received a tip from a confidential informant that a black male named McCrimmon and a Mexican male named Martin Soto, also known as Cha-Chi, were involved in the murders.

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With this information, Godoy conducted a records check on McCrimmon, which revealed his criminal history. Further investigation by Godoy revealed that Cha-Chi, Martin Soto, and Martin Fong were names used by the same person, and that Martin Fong was a former employee of the El Grande Market.

¶ 8 During this time period, Tucson Detective Fuller was investigating a late August 1992 restaurant robbery. Christopher McCrimmon became a potential suspect after forensic evidence linked him to that crime scene. Fuller discovered that Andre Minnitt, an associate of McCrimmon's, may also have been involved in the restaurant robbery. Fuller communicated this information to Godoy September 1, 1992. At that time, McCrimmon was already considered a suspect in the El Grande Market homicides, and with the additional information connecting Minnitt to McCrimmon, Godoy also considered Minnitt a possible suspect.

¶ 9 On September 2, 1992, Godoy assisted Fuller in arresting McCrimmon and Minnitt for the restaurant robbery. The same day, while both were in custody, Godoy questioned each of them about involvement in the El Grande homicides. Both denied involvement. Thus, as of September 2, 1992, Soto-Fong, McCrimmon, and Minnitt had been interviewed by police and were suspects in the El Grande crimes.

¶ 10 In late August 1992, one Keith Woods was released from prison. Several days later, he was arrested on drug charges. He was already a three-time felon, and possessing drugs was a parole violation subjecting him to a possible twenty-five year prison sentence. Facing this, Woods offered to become an informant in exchange for dismissal of the drug charges. Woods later stated that on the day of his release from prison, he was met by McCrimmon, who professed participation in the El Grande murders. He further testified that later the same day, he and McCrimmon went to Minnitt's apartment where Minnitt and McCrimmon provided him with details of the El Grande crimes. Following an untaped interview with Godoy on September 8, Woods was transferred to a "bugged" room where, on tape, he implicated Minnitt, McCrimmon, and a third person, Cha-Chi, in the El Grande homicides. The three were subsequently charged with the murders.

B. Procedural History

¶ 11 Soto-Fong was tried separately in 1993 and, based on direct evidence of his participation in the El Grande murders, was convicted and sentenced to death. His conviction and sentence were affirmed by this court. State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996). Minnitt and McCrimmon were tried jointly, also in 1993, and they, too, were convicted. As noted, however, the Minnitt and McCrimmon convictions were reversed due to juror coercion, and the case was remanded for a new trial. In 1997, Minnitt and McCrimmon were retried separately. Minnitt's retrial began first, resulting in a hung jury. Days later McCrimmon was tried and acquitted.

C. Godoy's Misdeeds and Peasley's Misconduct

¶ 12 Before discussing the actual misconduct in this case, we recount the context in which it occurred. Deputy County Attorney Kenneth Peasley conducted the 1993 Soto-Fong trial and the 1993 and 1997 trials of Minnitt and McCrimmon. He did not participate in Minnitt's 1999 trial. In all three Minnitt trials and in both McCrimmon trials, the state's case depended heavily on Keith Woods' credibility. Importantly, as of September 2, the police had identified Soto-Fong, McCrimmon, and Minnitt as suspects in the El Grande crimes and had interviewed them. But according to Godoy, police had yet to interview anyone who could provide direct evidence linking any of the three to the crimes. Woods was not interviewed until September 8, six days after the McCrimmon and Minnitt interviews. Godoy claimed to have received his first knowledge of any involvement by McCrimmon and Minnitt from his interview with Woods. This was the information the police were...

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