State v. Clary
| Decision Date | 30 August 2016 |
| Docket Number | No. 1 CA-CR 13-0694,1 CA-CR 13-0694 |
| Parties | STATE OF ARIZONA, Appellee, v. MARK WILLIAM CLARY, JR., Appellant. |
| Court | Court of Appeals of Arizona |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
The Honorable Cynthia J. Bailey, Judge
The Honorable Robert E. Miles, Judge (Retired)
Arizona Attorney General's Office, Phoenix
By Linley Wilson
Jones, Skelton & Hochuli, P.L.C., Phoenix
By Lori L. Voepel
Counsel for Appellant
MEMORANDUM DECISIONPresiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Donn Kessler joined.
¶1 Mark William Clary, Jr. ("Clary") appeals his convictions and sentences for two counts of manslaughter, three counts of aggravated assault, and one count of leaving the scene of a fatal injury accident. Finding no reversible error, we affirm. Pursuant to the parties' stipulation and our own review, however, we modify the sentencing minute entry to correct technical errors in that minute entry.
¶2 In the early morning of April 15, 2012, Clary caused a high-speed vehicle collision on the U.S. 60 freeway in Mesa. The trial evidence reveals Clary was driving his Chevrolet Corvette approximately twice the sixty-five mile-per-hour speed limit when his car collided with the back end of a Chevrolet Corsica and then spun into a Volkswagen Jetta. The force of the collision crushed the Corsica, causing its rear end to intrude upon most of its passenger compartment. The Corsica's driver and back-seat occupant died as a result of injuries sustained in the collision. The front-seat passenger of the Corsica and the Jetta's two occupants suffered various physical injuries.
¶3 Before law enforcement or medical personnel arrived at the scene, eyewitnesses saw Clary climb out the driver's side window of his Corvette, scurry up the embankment, and flee into a nearby residential neighborhood. He was apprehended approximately two to three hours later and transported to a police substation for questioning.
¶4 At the substation, after being advised of his rights pursuant to Miranda,2 Clary invoked his right to counsel and telephoned his father ("Clary Sr."), who is a lawyer. Clary Sr. used a second phone to call a criminal defense lawyer and put the two phones on speaker so Clary could consult with the other lawyer.
¶5 The State charged Clary by indictment with two counts of second degree murder, three counts of aggravated assault, and one count of leaving the scene of a fatal injury accident. All of the second degree murder and aggravated assault counts were alleged as dangerous offenses.
¶6 Before trial, Clary moved to dismiss the indictment with prejudice, arguing the State violated his rights to due process and counsel under the Fifth and Sixth Amendments when police officers "surreptitiously listened" to his telephone call with counsel at the substation. As evidence supporting his argument, Clary pointed to the following statements made by one detective to another at the station soon after Clary's consultation with counsel: 3 According to Clary, as a result of information police gleaned from the telephone call—ostensibly information regarding Clary's use of alcohol before the collision—Detective Siewert ("Siewert"), the State's case agent, obtained a search warrant to draw Clary's blood for alcohol testing. Clary argued that Siewert's affidavit supporting the search warrant falsely stated Siewert noticed signs of Clary's impairment because Siewert had only noticed such indications—including the strong odor of alcohol—after Clary's conversation with counsel.4 Also, because Siewert testified to the grand jury regarding his perception of Clary's alcohol impairment, Clarycharacterized this testimony as perjury and sought dismissal on this basis as well.
¶7 The trial court held an evidentiary hearing on the motion5 and found that Clary had established a prima facie violation of his right to counsel—which the State failed to adequately rebut—and the State had not established that Clary was not prejudiced by the intrusion, "since evidence of alcohol use by [Clary] would be highly relevant to the homicide charge against him." As a remedy, rather than dismiss the indictment, the court suppressed evidence of Clary's alcohol use or impairment, including the blood draw test results6 and Siewert's observation of impairment after Clary's conversation with counsel, reasoning that such evidence would be highly relevant to at least the homicide charges.7
¶8 The State moved to reconsider and to clarify the scope of evidence suppressed by the trial court's suppression order, and Clary moved to suppress items seized from the vehicles pursuant to search warrants, the affidavits for which contained the same purportedly false statement by Siewert regarding Clary's signs of impairment. At a subsequent pretrial hearing addressing those and other motions, Clary continued to argue the court "could have dismissed this case," but also stated the court's decision to suppress evidence of his alcohol use or impairment was "the appropriate remedy . . . to level that playing field." The court denied the State's motion to reconsider but granted the motion to clarify after noting, "The Court did not intend by its ruling to suppress evidence of alcohol use that preceded the attorney call (such as Officer Soller's8 observations) or that was not obtained as a result of the intrusionupon [Clary's] right to counsel." The court clarified that it was suppressing "any alcohol evidence that was obtained as a result of the intrusion, including the blood draw results and any testimony by Detective Siewert that he noticed indicia of alcohol use by [Clary] after the attorney call." (Emphasis deleted from original.) The court also denied Clary's motion to suppress items seized from the vehicles pursuant to the search warrants.9
¶9 At trial,10 the State presented the testimony of Siewert, who also conducted the accident reconstruction in this case. Based on eyewitness reports and the physical evidence at the crash site, Siewert opined that Clary's Corvette was traveling a minimum speed of 122 to 124 miles per hour when it struck the Corsica as both vehicles were in the number five lane, causing the Corsica to spin clockwise before hitting the south wall of the freeway. Over Clary's objection, Siewert also referred to a crash data retrieval ("CDR") report he obtained from the Corvette's air bag control module ("ACM"), which indicated Clary accelerated from 131 to 142 miles per hour during the five seconds immediately before the collision. Siewert explained that, after striking the Corsica, the Corvette spun into the Jetta, causing the Jetta to also make contact with the freeway's south wall. In addition to the surviving victims' testimony, the State also presented testimony from numerous witnesses who saw and vividly described Clary's speeding moments before the collision and/or his fleeing from the scene.
¶10 The jury acquitted Clary of the two charged second degree murder counts, but found him guilty of the lesser-included offense of manslaughter on each count and found that each of these class two felonies was a dangerous offense. The jury also found Clary guilty as charged on the other counts. The court imposed a combination of concurrent andconsecutive terms of imprisonment totaling seventeen years, to be followed by five years of probation. This court has jurisdiction over Clary's timely appeal. See Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, 13-4033(A).11
¶11 Clary contends suppression of the alcohol evidence was insufficient to cure the prejudice resulting from the violation of his right to counsel. He argues the trial court committed reversible error by not dismissing the indictment because it was based partially on Siewert's "perjured" testimony to the grand jury. Alternatively, Clary contends the trial court should have suppressed all evidence he maintains was obtained as a result of the violation.
¶12 In reviewing a trial court's ruling on a motion to dismiss the indictment or to suppress evidence, we generally defer to the court's factual findings and view the evidence presented at the suppression hearing and reasonable inferences therefrom in the light most favorable to sustaining the court's ruling, but we review de novo constitutional and legal issues. See State v. Rosengren, 199 Ariz. 112, 115-16, ¶ 9, 14 P.3d 303, 306-07 (App. 2000); see also State v. Moody, 208 Ariz. 424, 445, ¶ 62, 94 P.3d 1119, 1140 (2004); State v. Walker, 215 Ariz. 91, 94, ¶ 16, 158 P.3d 220, 223 (App. 2007). We review for an abuse of discretion the court's order suppressing the alcohol-related evidence as a remedy for the violation of Clary's rights. See Rosengren, 199 Ariz. at 116, ¶ 9, 14 P.3d at 307.
¶13 In determining whether dismissing an indictment is the appropriate remedy for the State's violation of a criminal defendant's right to counsel, a trial court weighs the defendant's constitutional rights against "society's interest in the administration of criminal justice." State v. Pecard, 196 Ariz. 371, 379, ¶ 38, 998 P.2d 453, 461 (App. 1999) (quoting United States v. Morrision, 449 U.S. 361, 364 (1981)). "Courts narrowly tailor remedies to Sixth Amendment violations to avoid unnecessarily infringing on this societal interest." Id. (ci...
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