Fitzgerald v. Superior Court In and For County of Maricopa

Decision Date14 April 1992
Docket NumberNo. 1,CA-SA,1
Citation845 P.2d 465,173 Ariz. 539
PartiesDonald Lee FITZGERALD, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Gregory H. Martin, a judge thereof, Respondent Judge, The STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Real Party in Interest. 91-273.
CourtArizona Court of Appeals


Petitioner Donald Lee Fitzgerald (defendant) seeks special action review of the trial court's denial of his motion to dismiss four criminal drug and weapons charges because of principles of double jeopardy and collateral estoppel that are allegedly applicable because of a previous civil forfeiture proceeding. The issue presented is whether a finding in the forfeiture action, that defendant was not engaged in any illegal activity regarding the seized items, precludes the state from bringing a subsequent criminal action based on defendant's possession and use of those items. We hold that although the criminal prosecution does not subject defendant to double jeopardy, the state is collaterally estopped from prosecuting defendant on two of the four criminal charges as a result of the facts litigated in the forfeiture action.

Factual and Procedural Background

On January 10, 1991, police executed a search warrant at defendant's home, based on probable cause to believe they would find cocaine. During the search, police found no cocaine, but seized the following items: a small plastic baggie containing marijuana, three prescription Tylenol III tablets containing codeine, a grinder-sifter apparatus and two scales of the type commonly used to process drugs (paraphernalia), two loaded guns in holsters, and $855 in cash in defendant's wallet.

On January 15, 1991, defendant was charged with the following crimes: Count I, possession of a narcotic drug (the Tylenol III tablets), a class 4 felony, in violation of A.R.S. § 13-3408; Count II, possession of marijuana, a class 6 felony, in violation of A.R.S. § 13-3405; Count III, possession of drug paraphernalia, a class 6 felony, in violation of A.R.S. § 13-3408; and Count IV, misconduct involving weapons, a class 4 felony, in violation of A.R.S. § 13-3102.

On May 13, 1991, prior to trial on the criminal charges, the state filed a civil complaint for in rem forfeiture of the guns, the $855 in currency, and the paraphernalia, pursuant to A.R.S. § 13-4311. The complaint alleged that there was probable cause to believe these items were used or intended to be used to facilitate the commission of racketeering offenses and drug offenses, and that the items were subject to forfeiture pursuant to A.R.S. § 13-2314 and A.R.S. § 13-3413, as well as A.R.S. § 13-4301 et seq. The complaint did not seek forfeiture of the Tylenol III tablets or the marijuana.

Defendant filed a claim to the property in the forfeiture action, and the court set a hearing pursuant to A.R.S. § 13-4310, at which defendant represented himself. The state presented evidence that the paraphernalia seized was of the kind commonly used to process illegal drugs sales, that the denominations of currency found on defendant's person were consistent with illegal drug sales, and that guns were commonly kept at places where drug transactions were occurring. Defendant testified that he obtained the money from his parents, that he owned the guns legally for protection in a bad neighborhood, that he found the paraphernalia in a car he had purchased for parts two years prior to the search, that the Tylenol III tablets were his brother's legal prescription medication, and that he did not know how the marijuana came to be in his home or who owned it. After taking the matter under advisement, the court issued its order on September 6, 1991, making the following relevant findings and conclusions:

1. The State met its initial burden of showing the existence of probable cause for forfeiture of the property in question mainly on circumstantial evidence.

2. Claimant has no ownership interest in the three Tylenol III tablets which were seized on January 10, 1991. Therefore, Claimant has no claim to that item and no interest to forfeit.

3. The $855.00 seized on January 10, 1991, was given to Claimant by Doris Fitzgerald and was not the proceeds of any illegal activity.

4. Claimant has proven by a preponderance of the evidence that Claimant's interest in the Taurus .357 magnum revolver, Strum Ruger .22 caliber semi-automatic pistol, Acculab digital scale, plastic gram scale and grinder/sifter apparatus is not subject to forfeiture. It is not illegal to possess or use any of those items. The evidence presented by Claimant is sufficient to rebut the circumstantial evidence of wrongdoing presented by the State. Considering all the evidence presented, the Court finds and concludes that Claimant was not engaged in racketeering or a narcotics offense and that these items were not used to perpetrate, aid or facilitate any illegal activity. Therefore, these items are not subject to forfeiture.


(Emphasis added). In the Matter of Eight Hundred Fifty-Five Dollars ($855.00) United States Currency, et al., CV-91-02699, Maricopa County Superior Court, Gary E. Donahoe, Judge Pro Tem, September 6, 1991, minute entry at 1.

The court ordered the above items returned to defendant, "subject to any prior order or hold on those items as evidence" in the criminal action, CR 91-02136. The state did not appeal from this judgment, and it became final.

On September 13, 1991, defendant filed a motion to dismiss the criminal action on the grounds of double jeopardy and collateral estoppel, arguing that the same issues litigated in the forfeiture action regarding his knowledge or intent in possessing the items were being raised by the criminal charges, and that the state intended to use as evidence in his criminal trial the property already determined in the forfeiture action not to be involved in any criminal wrongdoing. The state responded that no double jeopardy would occur from the criminal proceeding because the forfeiture action was civil in nature, and did not involve an "acquittal" in a prosecutorial setting. The state also contended that the forfeiture court had no jurisdiction to try defendant on the underlying crime; thus, because his guilt or innocence was not an issue of fact actually litigated in that court, no collateral estoppel consequences could flow to the criminal action from the forfeiture court's findings. After a hearing, the court denied the motion to dismiss the criminal charges, and defendant brought this special action.

Special Action Jurisdiction

The state argues that we should not accept special action of defendant's petition because he has an equally plain, speedy, and adequate remedy by appeal after conviction. See Rule 1(a), Arizona Rules of Procedure for Special Actions. However, as we have previously pointed out, special action is an appropriate procedural vehicle when a criminal defendant has raised an issue prior to prosecution about whether that prosecution will violate his constitutional protection against double jeopardy, because double jeopardy protects not only against convictions but also against multiple prosecutions. Nalbandian v. Superior Court, 163 Ariz. 126, 130, 786 P.2d 977, 981 (App.1989). We therefore accept special action jurisdiction.

Double Jeopardy

Defendant first argues that his criminal prosecution will place him twice in jeopardy for the same offense. The double jeopardy clause provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const., Amend. 5. This constitutional provision is enforceable against the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). See also Ariz. Const. art. 2, sec. 15.

The double jeopardy clause has been interpreted to provide three types of protection: (1) against a second prosecution for the same offense after an acquittal; (2) against a second prosecution for the same offense after conviction; and (3) against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The first two protections are against multiple prosecutions while the third protection is against multiple punishments. In the area of multiple prosecutions, the United States Supreme Court has adopted several tests to determine when double jeopardy occurs. First, if the offenses in two prosecutions have identical statutory elements or if one is a lesser included offense of the other, the second prosecution will be barred by reason of double jeopardy. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). Second, in order to establish an essential element of the offense, if the second prosecution requires proof of the same conduct that constituted the offense for which the accused has already been prosecuted, double jeopardy prevents the second prosecution. Grady v. Corbin, 495 U.S. 508, 520, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990). Thus, a multiple prosecution challenge must show that either the "identical elements test" or the "same conduct test" has been violated.

In the area of multiple punishments, the United States Supreme Court has adopted other tests to determine whether double jeopardy applies. First, whether both punishments are criminal in nature can be determined by examining the legislative intent of a statutory remedy as either punitive or remedial, and then by examining whether the punitive effect negates a remedial purpose....

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    ...two proceedings involved distinct legal rights and remedies. 135 Ariz. 329, 332, 660 P.2d 1256, 1259 (App. 1983). Fitzgerald v. Superior Court In and For County of Maricopa involved a civil forfeiture proceeding in which the trial court found that the defendant had not possessed or used the......
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    ...offense and a lesser included offense, and a violation of double jeopardy is fundamental error. See Fitzgerald v. Superior Court, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App.1992); see also State v. Siddle, 202 Ariz. 512, n. 2, 47 P.3d 1150, 1153 n. 2 (App.2002). We review this issue de novo......
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