State v. Bravo

Decision Date15 October 2015
Docket NumberNo. 1 CA-CR 14-0262,No. 1 CA-CR 14-0257,No. 1 CA-CR 14-0263,No. 1 CA-CR 14-0253,1 CA-CR 14-0253,1 CA-CR 14-0257,1 CA-CR 14-0262,1 CA-CR 14-0263
CourtArizona Court of Appeals


Appeal from the Superior Court in Maricopa County

Nos. CR2013-002656-001, -003, -004, and -005

The Honorable Bruce R. Cohen, Judge



Maricopa County Attorney's Office, Phoenix

By Karen Kemper

Counsel for Appellant

Maricopa County Public Defender's Office, Phoenix

By Christopher V. Johns

Counsel for Appellee Juan Carlos Bravo

Janelle A. McEachern, Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Appellee John Carmen Bravo-Martinez

Michael J. Dew, Attorney at Law, Phoenix

By Michael J. Dew

Counsel for Appellee Jaime Bravo Martinez

Droban & Company, P.C., Anthem

By Kerrie M. Droban

Counsel for Appellee Nestor Manuel Ponciano

Judge Maurice Portley delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.


¶1 The State challenges the new trial the superior court granted to Juan Carlos Bravo, John Carmen Bravo-Martinez, Jaime Bravo Martinez, and Nestor Manuel Ponciano (collectively, "the Defendants") after the jury's verdict. For the reasons that follow, we affirm.


¶2 A complaint about music being played too loudly at a late-night backyard party in west Phoenix escalated into a citywide police call for help resulting in the deployment of seventy officers, and the arrest of five people, all relatives,2 on charges of riot; aggravated assault for touching with intent to injure, insult or provoke; and resisting arrest.

¶3 Officer M.L. testified that he went to the house and the homeowner refused to turn off the music and end the party. He stated that a crowd of partygoers massed at the front door, and quickly became hostile, using profanity and telling him to leave. One person at the front door, later identified as Ponciano, told the officer "he had a right to bear arms and he has guns," which the officer took as a threat. An unidentified partygoer then threw a cup of beer at the officer, and the group shut the door when the officer used pepper spray.

¶4 Officer M.L. and several others, who had responded to his call for backup, subsequently entered the backyard, where several of the thirty to forty attendees yelled and cursed at the officers, told them they had no right to be there, and refused to comply with commands to sit down or disperse. In the resulting chaos, the four Defendants pushed various officers or threw items at them, resulting in their arrest and being charged.

¶5 The case went to trial. Jaime Bravo Martinez, Nestor Manuel Ponciano, and Juan Carlos Bravo testified on their own behalf and denied the allegations.

¶6 Following a forty-three day trial, the jury convicted: (a) Juan Carlos Bravo of aggravated assault for punching an officer; (b) Nestor Manuel Ponciano of aggravated assault for pushing an officer, and of resisting arrest; (c) Jaime Bravo Martinez of reasonable apprehension aggravated assault; and (d) John Carmen Bravo-Martinez of four counts of aggravated assault for throwing a jar at one officer and pushing others, one count of resisting arrest, and one count of rioting. All were for class 5 felonies, except for the resisting arrest convictions, which were class 6 felonies.

¶7 The Defendants asked for a new trial and, after briefing, the superior court granted their motion. The State timely filed notices of appeal from the court's order.

¶8 The State subsequently moved to dismiss each of the cases without prejudice for purposes of appeal. The superior court dismissed the case against each Defendant without prejudice.

I. Effect of Dismissal of Underlying Cases

¶9 Juan Carlos Bravo argues the dismissal of the underlying case deprives this court of jurisdiction and renders this appeal moot. We disagree.

¶10 The right to appeal can only be given or denied by constitution or statute. State v. Birmingham, 96 Ariz. 109, 111, 392 P.2d 775, 776 (1964). Here, the State has a statutory right to appeal from the superior court's grant of the motions for new trial. Ariz. Rev. Stat. ("A.R.S.") § 13-4032(2); Birmingham, 96 Ariz. at 111, 392 P.2d at 776. Although the State did not need to dismiss the action before filing its appeal, an action we hope is not replicated, the constitution does not prohibit the procedure followed by the State. See State v. Million, 120 Ariz. 10, 14-16, 583 P.2d 897, 901-903 (1978). As a result, we conclude we have jurisdiction over theState's appeal regardless of whether the case has been stayed or dismissed pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4032(2).

¶11 The Defendants argue the case is over because the State successfully asked that the charges be dismissed without prejudice. We disagree. Although the State dismissed the case without prejudice, if we were to find that the court erred, the effect would be to "return the case to the posture it was in . . . before the trial court ruled on defendant's motion for new trial." State v. Moya, 129 Ariz. 64, 65, 628 P.2d 947, 948 (1981). Similarly, the United States Supreme Court stated that if the State was successful on appeal, it would result "in the reinstatement of the general finding[s] of guilty, rather than in further factual proceedings relating to guilt or innocence." United States v. Morrison, 429 U.S. 1, 3-4 (1976); see State v. West, 226 Ariz. 559, 562, ¶ 13, 250 P.3d 1188, 1191 (2011) (stating that if the ruling is reversed on appeal, "the verdict of guilt can simply be reinstated").

¶12 On the other hand, if we find the court did not abuse its discretion in granting the motion for new trial, we would simply affirm and remand the case back for the new trial. The State does not need to reindict the Defendants and start anew because we are leaving the parties in the same position they were when the State erroneously thought it had to dismiss the charges to challenge the court's ruling. Consequently, the appeal is not moot and we will consider the merits. See Cardoso v. Soldo, 230 Ariz. 614, 617, ¶ 5, 277 P.3d 811, 814 (App. 2012) ("[W]e will dismiss an appeal as moot when our action as a reviewing court will have no effect on the parties.").

II. Grant of New Trial

¶13 The superior court granted the Defendants' motions for new trial. The court found that admission of evidence of the gun found on Juan Carlos Bravo was prejudicial and the cumulative impact of misstatements of evidence by the prosecutor throughout trial and during rebuttal argument, against a backdrop of "due process rights violations under the rationale of victims' rights protections," persuaded the court that the trial was neither fair nor constitutionally valid, requiring a new trial. Because of the length of the trial, however, the court "focused far more on a global consideration of the trial," noting that, "[f]rom that, there remains the lingering question as to whether the trial, as conducted, was fair and consistent with the due process rights of each defendant . . . [t]his Court cannot envision a circumstance wherein a reviewing court could find that the trial in this matter was fair and constitutionally valid." The court then announced it would set oral argument prior to the new trial "on the Rule 403 issues relating [to] the confiscated and previously admitted guns."

¶14 The State argues the superior court abused its discretion by granting the Defendants a new trial because the refusal of the police-officer victims to be interviewed by the Defendants did not infringe upon the Defendants' due process rights. The State also argues the misstatements identified by the superior court during the prosecutor's rebuttal argument were not misstatements at all, and, in any case, were unintentional.

A. Standard of Review

¶15 Arizona Rules of Criminal Procedure ("Rule") 24.1(c)(5) provides that a trial court may grant a new trial if "[f]or any other reason not due to the defendant's own fault the defendant has not received a fair and impartial trial . . . ." In fact, our supreme court has stated that "[m]isconduct alone will not cause a reversal, as a new trial should not be granted to punish counsel for his misdeeds, but [only] where the defendant has been denied a fair trial as a result of the actions of counsel . . . ." State v. Moore, 108 Ariz. 215, 222, 495 P.2d 445, 452 (1972). For example, a new trial will be warranted where a prosecutor's improper remark calls to the jury's attention a matter "that they would not be justified in considering in determining their verdict" and it must be probable that the remark influenced the jury's verdict. State v. Hansen, 156 Ariz. 291, 296-97, 751 P.2d 951, 956-57 (1988). As a result, because the trial court is in the best position to determine whether an attorney's remarks require a mistrial, or a new trial, we will not disturb the ruling absent an abuse of discretion. See id. at 297, 751 P.2d at 957. And we are mindful that the trial court has broad discretion to grant a new trial, and the appellant, in this case, the State, bears the burden of establishing that the record shows the court acted arbitrarily. State v. Villalobos, 114 Ariz. 392, 394, 561 P.2d 313, 315 (1977).

¶16 Moreover, if a motion for "new trial was granted on one or both of the grounds . . . the fact that it was incorrect on [one or] the other ground is immaterial." State v. Turner, 92 Ariz. 214, 217, 375 P.2d 567, 568 (1962) (citing State v. White, 56 Ariz. 189, 191, 106 P.2d 508, 509 (1940)). Consequently, we will affirm the grant of new trial unless the State demonstrates the court acted arbitrarily. Villalobos, 114 Ariz. at 394, 561 P.2d at 315; cf. State v. Harrington, 27 Ariz....

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