State v. Pecard
| Decision Date | 12 October 1999 |
| Docket Number | No. 1 CA-CR 98-0682.,1 CA-CR 98-0682. |
| Citation | 998 P.2d 453,196 Ariz. 371 |
| Parties | STATE of Arizona, Appellant, v. David Michael PECARD, Appellee. |
| Court | Arizona Court of Appeals |
Review Denied April 18, 2000.1
Richard M. Romley, Maricopa County Attorney by Arthur Hazelton, Deputy County Attorney, Phoenix, Attorneys for Appellant.
Richard D. Gierloff, Phoenix, Attorney for Appellee.
¶ 1 The State of Arizona appeals from the trial court's order dismissing with prejudice two indictments against the defendant, David Michael Pecard ("Pecard"). For the reasons stated below, we reverse the dismissal orders of the trial court.
¶ 2 On December 19, 1996, Pecard was indicted on three counts of fraudulent schemes and artifices, one count of computer fraud, one count of theft, four counts of forgery and one count of sexual abuse. The state alleged that, by using a false name, Pecard, then a United States Army sergeant, insinuated himself into the Maricopa County Sheriff's Office ("MCSO"), headed by Sheriff Joe Arpaio, where he became cross-certified as a law enforcement officer. While so acting, Pecard allegedly accessed the MCSO's computer system to obtain benefits and to commit crimes, including fraud and sexual abuse. Using several false names, he also allegedly obtained driver's licenses and other forms of identification.
¶ 3 On September 30, 1997, Pecard was again indicted on two additional counts of fraudulent schemes and artifices. This indictment alleged that, pursuant to a scheme or artifice to defraud, he obtained several credit cards and student loans from various financial institutions and state and federal governments.
¶ 4 As of December 1996, Pecard also faced court-martial charges brought by the United States Army at Fort Huachuca, Arizona, for three counts of desertion plus one count of making a false official statement and fraudulent enlistment. At the time Captain Edward Dillard, a senior defense counsel in the Judge Advocate General Corps, was representing Pecard in the court-martial proceedings.
¶ 5 Pursuant to Arizona Rule of Evidence 404(b), the state filed a notice of intent to use evidence at trial of Pecard's fraudulent enlistment in the Army, his use of aliases, his desertion, and his dishonorable discharge. The state also filed an allegation of several historical prior felony convictions.
¶ 6 Pecard's motion to dismiss both state indictments claimed that MCSO violated his rights under the Fifth and Sixth Amendments of the United States Constitution and Article II, sections 4 and 24 of the Arizona Constitution. Specifically he alleged MCSO 1) denied him access to his attorneys, 2) monitored and recorded his telephone conversations with Captain Dillard, 3) illegally opened privileged mail and 4) removed legal materials from his cell.
¶ 7 The following information appears in the record of the trial court's evidentiary hearing.2 On December 5, 1996, Pecard was placed in solitary confinement in the Maricopa County Jail as a security risk. From his first day there, he was treated differently from the other prisoners, including those others in solitary confinement. The jail commander, Captain David Alster, gave "marching orders" that Pecard was to receive no privileges, including outside telephone calls and visitations, unless approved by him. He also issued an order to jail personnel to interfere with Pecard's ability to make calls to his attorneys.
¶ 8 Captain Alster restored Pecard's privileges four days later on December 9, 1996. However, even after that date, he would not approve Pecard's written telephone privilege requests designating Richard Gierloff and Captain Dillard as his attorneys in the state and federal proceedings respectively. He also refused to recognize Captain Dillard as one of Pecard's attorneys until January 30, 1997 even though the Army had placed a detainer on Pecard at the jail on December 6, 1996.
¶ 9 Pecard filed several grievances with jail officials about the denial of access to his attorneys. He claimed he was unable to telephone any attorney until late in December 1996. For reasons not fully explained in the record, some of his telephone calls to his attorneys were not connected. Because he believed MCSO randomly blocked his calls, Pecard had jail personnel document his inability to complete the calls. During one incident in which he was engaged in a conference call with Captain Dillard and attorney Gierloff, jail personnel interrupted the call and demanded that he immediately turn over the phone to them.
¶ 10 Because charges in the state cases could detrimentally affect the court-martial charges and vice versa,3 attorney Gierloff and Captain Dillard shared information and attempted to work as an integrated defense team. As Fort Huachuca is 310 miles from the Maricopa County Jail, telephone communication between Pecard and Captain Dillard was necessary to prepare a defense.
¶ 11 In January 1997, the General Investigation Division of MCSO ordered Sergeant LaPoint to monitor and tape record all Pecard's telephone conversations, without exception for privileged calls, and to take notes on the calls and report the contents to Detective Brutsche of the Phoenix Police Department who was investigating Pecard's state cases. According to LaPoint, the purpose of this monitoring was to listen "for things that could be used in the prosecution of Mr. Pecard."
¶ 12 Sergeant LaPoint began recording Pecard's telephone conversations on January 13, 1997. The recorded calls were preceded by an advisory message indicating that the calls were being recorded. After Captain Alster acknowledged that Captain Dillard was Pecard's attorney, Captain Alster notified T-Netix, the company in charge of the jail's telephone system, to stop recording Pecard's calls to Captain Dillard.
¶ 13 On January 30, 1997, Sergeant La-Point ceased monitoring and recording calls between Pecard and Captain Dillard. However, the advisory message continued to precede every phone call placed by Pecard to Captain Dillard until October 1997. When Pecard complained to jail authorities, he was told the advisory message was a figment of his imagination. MCSO did not bring the problem with the computerized system to T-Netix's attention until two weeks before the trial court's evidentiary hearing.
¶ 14 Captain Dillard was aware of the advisory message preceding each telephone call. He believed Pecard's conversations were being recorded even after January 30, 1997. He and Pecard agreed to not discuss on the telephone any information that was "case-sensitive" for either the court-martial or the state cases, leaving such discussions for rare face-to-face meetings.
¶ 15 On March 3, 1997, the trial court ordered that all tape recordings of conversations between Captain Dillard and Pecard be turned over to attorney Gierloff. It also ordered MCSO to include Captain Dillard as Pecard's attorney of record. All but one tape was produced pursuant to the court order. The missing tape, even though it had been stored in the same location as the other tapes, was not produced until the evidentiary hearing. Sergeant LaPoint claimed the omission was accidental.
¶ 16 This missing tape contained a conversation occurring on January 21, 1997 between Pecard and Captain Dillard about whether to pursue an insanity defense in the court-martial proceeding. This defense was not an issue in the state court proceedings. In spite of the contents of this tape, Detective Brutsche testified that the only information Sergeant LaPoint conveyed to him from these taped conversations concerned Pecard's difficulty in receiving back pay from the military.
¶ 17 Because he was considered a security risk, MCSO jail officers ordered Pecard's nonprivileged mail to be opened, read by prison authorities and pertinent information conveyed to Detective Brutsche. Standard MCSO policy states that "privileged" mail includes correspondence with attorneys, law enforcement officials, court officials, news media and public officials, and that none of this kind of mail is to be opened except in the presence of the defendant.
¶ 18 In spite of this policy, MCSO opened some of Pecard's privileged mail outside his presence. In September 1997, Lieutenant Pinto of MCSO ordered that he personally receive all Pecard's mail to ensure that privileged mail was not improperly opened. However, as late as October 1997, MCSO was still opening Pecard's privileged mail outside his presence.
¶ 19 Beginning in May 1997, Pecard filed numerous grievances about this treatment. The contents of this mail, which included military legal mail, correspondence from attorney Gierloff, mail from the United States District Court as well as mail from the United States Senate, is unknown. In response to Pecard's complaints, an external referee investigated and issued a report in November 1997, finding mail policy violations without intent by MCSO and without damage to Pecard.
¶ 20 At the trial court's evidentiary hearing, MCSO claimed that opening Pecard's privileged mail was inadvertent, merely the result of the officers'"zeal" to timely process mail. The trial court found this position "not worthy of belief." Because of Pecard's repeated grievances coupled with the outside investigation by the external referee and the "enormity of the attention that was brought to bear on the defendant's mail," the trial court found MCSO's interference with Pecard's privileged mail intentional and deliberate.
¶ 21 Pecard was absent from the jail between November 1997 and December 6, 1997 because of his court-martial proceeding in Fort Huachuca. He took with him only those legal materials needed for those proceedings and left behind in his cell other legal...
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State v. Moody
...eavesdropping on privileged calls and opening privileged materials intrude into the attorney-client relationship, see State v. Pecard, 196 Ariz. 371, 376-78, ¶¶ 26-37, 998 P.2d 453, 458-60 (App.1999) (finding an intrusion into the attorney-client relationship where defendant's telephone cal......
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...or indirectly, obtained evidence or learned of defense strategy from the intrusions." State v. Pecard, 196 Ariz. 371, 377 ¶ 28, 998 P.2d 453, 459 (App.1999) (citing Weatherford v. Bursey, 429 U.S. 545, 558, 97 S.Ct. 837, 51 L.Ed.2d 30 ¶ 52 In Warner, this Court addressed an argument similar......
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