Pedraza v. Circuit Court of Drew Cnty.

• Decision Date: 14 March 2013
• Docket Number: No. CR 12–851.,CR 12–851.
• Citation: 426 S.W.3d 441,2013 Ark. 116
• Parties: Daniel PEDRAZA, Petitioner v. CIRCUIT COURT OF DREW COUNTY, Respondent.
• Court: Arkansas Supreme Court

2013 Ark. 116

426 S.W.3d 441

Daniel PEDRAZA, Petitioner

v.CIRCUIT COURT OF DREW COUNTY, Respondent.

No. CR 12–851.

Supreme Court of Arkansas.

March 14, 2013.

Jeff Rosenzweig, Little Rock; George (Birc) Morledge, Little Rock; and Timothy Leonard, for appellant.

Dustin McDaniel, Att'y Gen., by: Eileen W. Harrison, Ass't Att'y Gen., for appellee.

CLIFF HOOFMAN, Justice.

Petitioner Daniel Pedraza is charged with capital murder, and the State is seeking the death penalty. Pedraza has filed a petition for writ of certiorari asking this court to order the Drew County Circuit Court to grant a continuance of his trial. Because Pedraza requests extraordinary relief, our jurisdiction is pursuant to Arkansas Supreme Court Rule 12(a)(3). We deny the petition.

On March 2, 2012, Pedraza, without counsel, made his first appearance in the Drew County Circuit Court and was held without bond pending charges of capital murder. He was charged with capital murder as provided in Arkansas Code Annotated section 5–10–101 (Supp.2011) and permitting the abuse of a minor as provided in Arkansas Code Annotated section 5–27–221 (Repl.2006) by felony information on March 20, 2012. Pedraza appeared in circuit court for formal arraignment on April 2, 2012. Steve Porch, a local public defender, was appointed by the court to represent Pedraza. At that hearing, he entered a plea of not guilty and requested a jury trial. The court gave Porch until April 13 to identify death-qualified co-counsel, and it scheduled an omnibus hearing for May 7.¹ The court informed the parties that it would “endeavor to try this at the end of the summer.”

On April 9, 2012, Jeff Rosenzweig, appointed by the Arkansas Public Defender Commission, entered his appearance as lead counsel for Pedraza. Thereafter, Porch inquired of the court as to whether both he and Rosenzweig needed to be at all pretrial hearings. The court, by letter, informed the parties that both death-qualified defense attorneys were required to be present at all stages of the proceedings. On April 20, 2012, Porch filed a motion to substitute Patrick Benca as counsel, and Benca filed an entry of appearance.

At the May 7 hearing, Rosenzweig and Benca appeared on behalf of Pedraza and asked the court to continue the omnibus hearing for thirty days. The court granted that request and set the next court date for June 11. At the June 11, 2012 hearing, the defense informed the court that it had received the autopsy report and a sizeable amount of discovery from the State within the last week. Although the defense did not anticipate arguing that Pedraza was incompetent to proceed with trial or that he had a mental disease or defect that would impact the issue of culpability, it asked for two months to allow an expert to examine Pedraza for mitigation purposes. The court declined this request and ordered the defense to identify experts, including those for purposes of mitigation, and the substance of their testimony within thirty days. Additionally, the court set a trial date of October 15, 2012, with the expectation that the trial would take two weeks. Rosenzweig indicated that he had another trial tentatively scheduled for the first two weeks of October, to which the court responded that its setting was first over a tentative scheduling and “would prevail.” Thereafter, Benca stated that he had a two-week death-penalty trial scheduled to begin October 8 in Benton County. The court noted that it “would love to have [Benca] in this courtroom, but they'll have to find someone else.” Rosenzweig objected on the basis that Benca had indicated he had a conflict and that it would be inappropriate to substitute another attorney at the last minute. The court noted that it would wait to see if an actual conflict occurred and that it would possibly contact the circuit judge in Benton County to discuss scheduling matters.

The court entered a written order on June 13, 2012, setting the case for jury trial on October 15, 2012, and setting a pretrial hearing for July 10. The order noted that if the trial date was inconvenient to witnesses or counsel, the court was to be promptly notified and the case would be reset for October 22, 2012. Benca sent a letter to the court stating that his October 8 trial was likely to proceed and requesting that the court consider the alternateOctober 22 date. On June 21, 2012, the court entered an amended order setting the trial for October 22, 2012, to accommodate Benca's conflict. Benca sent another letter to the court on June 26, 2012, asking the court to consider continuing the trial until the first part of 2013. Benca informed the court that he would like to stay on the case but that due to his other scheduled trial in October 2012, he could not effectively represent Pedraza if a continuance was not granted. A letter from the court, filed of record on July 2, 2012, stated,

This Court, based upon this record, has no reason to believe that Mr. Pedraza's defense would be prejudiced by trying his case as scheduled. Normally cases do not get better with age.

On July 6, 2012, Pedraza filed a notice of objection to trial setting and motion for continuance, arguing that Benca never consulted with lead counsel prior to accepting the October 22 date; that Benca's two-week trial in Benton County, scheduled immediately prior to the October 22 setting, would severely limit his participation in advance of Pedraza's trial; and that due to the complexity of the case and the fact that discovery was not yet completed, it would be nearly impossible to go to trial in October. On that same date, George “Birc” Morledge filed a motion to be substituted as counsel to relieve Benca. Because Morledge would not admit that the substitution would not cause a delay in the October 22 trial setting, the court refused to relieve Benca and substitute Morledge. On July 20, 2012, Pedraza filed a renewal of his motion to substitute counsel, clarifying that Morledge would have no actual conflict with the October 22 trial setting but that the defense as a whole would not have enough time to adequately prepare.

On September 10, 2012, Pedraza was again before the court at a pretrial hearing. The court granted the motion to substitute Morledge for Benca. Defense counsel again requested a continuance, citing trouble obtaining all of Pedraza's military records. Defense counsel asserted that Pedraza had spent a year in combat in Iraq with the National Guard and that those records were necessary for mitigation purposes. After hearing argument of counsel, the court ordered Pedraza's mitigation investigator, Tyler Green, to take the stand and testify about what steps he had taken to acquire the military records. Rosenzweig asked that Green's testimony be taken ex parte, as Green is a member of the defense team, but the court denied that request. Green testified that he had acquired some of Pedraza's military records from the Crossett National Guard Armory but that he had been unsuccessful in obtaining Pedraza's military medical records. The court denied the motion for a continuance without prejudice.

On September 27, 2012, Pedraza filed a renewal of his motion for continuance under seal. He argued that the October 22 trial date was six months from his first court appearance wherein he was represented by counsel; that at least a year was necessary to prepare for trial due to the complexity of the case; that his case in particular posed specific issues necessitating a continuance, because of his status as a Mexican national, the cultural and language barriers involved, and the fact that the majority of his family, including his mother and father, did not speak English and lived in Mexico; that the defense had been hampered by personnel issues regarding who would serve as counsel; that investigation into Post Traumatic Stress Disorder (PTSD) as a possible mitigator was hampered without access to Pedraza's military medical records; and that the Arkansas State Crime Lab had still not provided all relevant discovery to the defense. Pedraza maintained that despite diligent efforts, his defense counsel needed additional time to prepare, that significant work remained to be completed, and that under no circumstances could the defense be prepared to effectively represent Pedraza for a trial on October 22. He asked that he be given more time to develop mitigation through evaluation by mental-health experts. Moreover, Pedraza asserted that once his defense team had identified witnesses for mitigation purposes, including family members who lived in Mexico, it would take at least four months to secure the proper documentation and approval to have those family members travel to Arkansas to testify. Attached to the motion were several affidavits and declarations in support of granting a continuance, including a letter from the Consul General of Mexico; a declaration from a Texas criminal-defense attorney who tried death-penalty cases; an affidavit of Dr. James Walker, a clinical neuropsychologist and forensic psychologist, who stated that he had begun an evaluation of Pedraza but that his work was not yet finished and would take additional time; a declaration of another physician; ² and an affidavit of Alicia Amezcua–Rodriguez, a mitigation investigator with experience in capital cases involving Mexican nationals. Pedraza asked the court to grant a reasonable continuance for his defense team to complete its investigation and to prepare for trial.

The court entered an order on September 27, 2012, finding that there was no sound legal reason not to allow the State to review and respond to the motion for continuance that had been filed under seal. However, the court withheld one declaration “for the time being” but noted that nothing in it revealed information not already known to all counsel. The court found that nothing presented by Pedraza supported a “threshold finding that a continuance would furnish a reasonable possibility...