Humble v. Superior Court In and For County of Maricopa

• Decision Date: 23 November 1993
• Docket Number: CA-SA,No. 1,1
• Citation: 179 Ariz. 409,880 P.2d 629
• Parties: Robert Houston HUMBLE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Ronald S. Reinstein, a judge thereof, Respondent Judge, The STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Real Party in Interest. 93-0217.
• Court: Arizona Court of Appeals

Page 629

880 P.2d 629

179 Ariz. 409

Robert Houston HUMBLE, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, The Honorable Ronald S. Reinstein, a judge thereof, Respondent Judge The STATE of Arizona, ex rel. Richard M. ROMLEY, Maricopa County Attorney, Real Party in Interest.

No. 1 CA-SA 93-0217.

Court of Appeals of Arizona Division 1, Department B.

Nov. 23, 1993.

Review Denied Sept. 20, 1994.

[179 Ariz. 411] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Div., and Richard M. Romley, Maricopa County Atty. by Arthur Hazelton and Pam Hearn, Deputy County Attys., Phoenix, for real party in interest.

Dean W. Trebesch, Maricopa County Public Defender by Patricia A. O'Connor, Deputy Public Defender, Phoenix, for petitioner.

OPINION

JACOBSON, Presiding Judge.

Petitioner Robert Houston Humble (defendant) seeks special action review of the trial court's order denying his motion to dismiss his indictment on two counts of driving while under the influence of intoxicating liquors (DUI) with two prior felonies, on the basis that the five year delay from his indictment to his arrest violated his rights to a speedy trial on both constitutional and procedural grounds. The issue before us is whether the state exercised due diligence in its efforts to serve defendant with notice of these charges, which have been pending since 1988.

SPECIAL ACTION JURISDICTION

As a preliminary matter, we note that this court does not generally accept special action review of a denial of a motion to dismiss. See generally Maricopa County v. Superior Court, 170 Ariz. 248, 823 P.2d 696 (App.1991). This is because issues in support of dismissal can be raised in an appeal from conviction. See, e.g., State v. Mendoza, 170 Ariz. 184, 823 P.2d 51 (1992) (defendant appealed from DUI conviction contending trial court should have granted his motion to dismiss for violation of speedy trial rules). Arizona courts have, however, utilized special action review of speedy trial issues in DUI cases in which the trial court has been found to abuse its discretion in refusing to dismiss charges with prejudice when the state has not exercised due diligence. See, e.g., Duron v. Fleischman, 156 Ariz. 189, 751 P.2d 39 (App.1988); Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), overruled on other grounds by Mendoza; Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984); see also Cornell v. Superior Court, 160 Ariz. 1, 770 P.2d 305 (1989) (court of appeals declined special action jurisdiction but supreme court granted review to reverse and remand to trial court). Because we believe this case is similar, in the exercise of our discretion, we accept special action jurisdiction.

FACTS AND PROCEDURAL HISTORY

Defendant was arrested for DUI on March 16, 1988. The "Alcohol Influence Report" completed by the arresting officer indicates that defendant provided police with his correct name, current local address and telephone number, social security number, and the name and address of the owner of the vehicle he was driving. The "Arrest/Booking Record" also indicates he provided the name and local telephone number of his father, but not an address. Both documents indicated "none" in spaces provided for defendant's employer's name, address, and phone number.

Defendant apparently was provided with a second sample of his breath test at the time of his arrest, was advised of his preliminary hearing date, and was released. Defendant alleges that, at a subsequent preliminary hearing in Northwest Justice Court, he was told his case was "scratched," and was given no further information.

On May 5, 1988, an indictment was filed, charging defendant with two counts of DUI with two prior convictions, class 5 felonies. On that date, the Maricopa County Sheriff's Office prepared a "summons worksheet," in preparation of service of the indictment summons on defendant at his home address. This worksheet again contained defendant's correct home address and telephone number, social security number, and physical description, in typewritten notation. Under the category "Occupation--Employer and Address," the worksheet had a typewritten notation of "NONE" followed by a handwritten entry "Simpson Concrete/carpenter" with a typewritten telephone listing of "NONE." Defendant's father's phone number was not included on the worksheet.

On May 10, 1988, at 11:50 a.m., Officer Robert Bradshaw, a reserve deputy with the Maricopa County Sheriff's Office, attempted to serve defendant with the summons at his home address. When he got no response, he left a card that contained an emblem of the Maricopa County Sheriff's Office, a phone number to call, and a reference number. Officer Bradshaw testified that he affixed the card as an "attention-getter," "someplace in the entrance way of the premises," perhaps folded and wedged in the door at eye level, but that he had no memory of this specific service attempt and did not recall if the residence was a private home or an apartment building. Officer Bradshaw did not recall an employer's name entered on the worksheet at the time he attempted service, stating, "there is nothing usually on it in that category in handwriting. Usually I put it on later. Some of them have more research done on it." He attempted no further service on defendant because he did not have time and he had too many other summonses to deliver. He returned the worksheet to the sheriff's office with the notation, "05-10-88 1150 HRS. ATT. SERVICE--NO ANSWER--LEFT CARD."

The worksheet indicates that a copy of the summons was mailed to defendant's home address on June 6, 1988, by certified mail, restricted delivery, with return receipt requested. The post office left notice of its first attempt to deliver the letter on June 8, 1988, left a second notice on June 17, 1988, and thereafter returned the letter to the sheriff's office on June 23, 1988, as "unclaimed."

A state's witness testified that the procedure in the sheriff's office when a certified mail summons is returned is to forward the matter to the county attorney for consideration of the issuance of an arrest warrant. A "warrant worksheet" is filled out, and if a work address appears, a warrant team generally attempts personal service. In this case, the warrant issued on July 14, 1988, and the worksheet was completed on July 20, 1988, with the notation, "This was previously a summons. See attached worksheet," but left blank the category for defendant's occupation, employer, and employer's address.

No further efforts were made to locate or serve defendant with the summons or the warrant. Defendant alleges that, although he moved from the listed address in September 1988, his father has remained available at the phone number he provided at the time of his arrest, with knowledge of defendant's whereabouts during several moves, that defendant has been employed during the last 14 years at Simpson Concrete, and that he has received state unemployment benefits sporadically since the time of his arrest, under his correct social security number and at his current address. The state does not contest these factual allegations.

Defendant was arrested on the outstanding 1988 warrant on February 17, 1993, when contacted by police as a victim in an unrelated matter. On July 13, 1993, he filed a motion to dismiss the indictment with prejudice for violation of his speedy trial rights under Rule 8, Arizona Rules of Criminal Procedure. He subsequently filed a supplemental motion to dismiss for violation of his constitutional rights to a speedy trial under the United States and Arizona Constitutions. The state responded, arguing that the delay should be considered as excluded time under Rule 8.4(a), occasioned by defendant because the state had exercised due diligence in attempting to serve defendant, and thus his speedy trial rights had not been violated. After an evidentiary hearing, the trial court ruled:

I agree that the State was totally deficient as far as just leaving the card there, and if I remember right, years ago when we were dealing with all the Hinson ¹ cases and having these hearings on a b[i]-weekly basis, one of the issues that came up and has come up before in appellate cases, is the issue of why don't they just send certified mail.

And in this case, while they should have done more, I believe as far as contacting the employer and father and what not, the fact of the matter is they did send certified mail....

... And because of that, I think the State did try to serve the defendant with sufficient notice by sending certified mail to the defendant's address that he listed at the time of his arrest.

Therefore, it is ordered denying the motion to dismiss.

Defendant petitioned this court for special action relief, and the trial court stayed further proceedings pending our resolution.

ANALYSIS

A. Procedural Rights to Speedy Trial

We first examine defendant's procedural rights to a speedy trial under Rule 8, Arizona Rules of Criminal Procedure, because, if that rule is dispositive, we need not reach the constitutional issues. See Cornell v. Superior Court, 160 Ariz. 1, 3, 770 P.2d 305, 307 (1989). Rule 8.2, Arizona Rules of Criminal Procedure, provides time limits in which criminal defendants must be tried. In this case, the provisions of Rule 8.2(a) required that defendant be tried within 150 days of his arrest or service of the summons. The computation of those time limits may be extended, however, by the provisions of Rule 8.4(a), which excludes "[d]elays occasioned by or on behalf of the defendant, including, but not limited to, delays caused by ... the defendant's absence or incompetence, or his inability to be arrested or taken into custody in Arizona." A defendant's "inability to be arrested" does not depend upon a showing that the defendant has willfully avoided prosecution, but has been construed also to include circumstances in which the...