State v. Fischer

• Decision Date: 08 October 2015
• Docket Number: No. 1 CA–CR 14–0183.,1 CA–CR 14–0183.
• Citation: 723 Ariz. Adv. Rep. 15,360 P.3d 105,238 Ariz. 309
• Parties: STATE of Arizona, Appellant, v. Robert FISCHER, Appellee.
• Court: Arizona Court of Appeals

238 Ariz. 309

360 P.3d 105

723 Ariz. Adv. Rep. 15

STATE of Arizona, Appellant,

v.Robert FISCHER, Appellee.

No. 1 CA–CR 14–0183.

Court of Appeals of Arizona, Division 1.

Oct. 8, 2015.

As Amended Oct. 8, 2015.

Maricopa County Attorney's Office By Susan L. Luder, Phoenix, Counsel for Appellant.

Dwane Cates Law Group PLC By Dwane Catesand Smith LC By Stephen C. Biggs, Steven C. Smith and Richard R. Thomas, Phoenix, Co–Counsel for Appellee.

OPINION

GOULD, Judge:

¶ 1 The State appeals the trial court's order granting Defendant Robert Fischer's motion for new trial. For the following reasons, we reverse, reinstate the guilty verdict, and remand for sentencing.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In late December 2010, Defendant visited his step-daughter, Belinda, and her family for Christmas. Shortly after Defendant arrived, the family went out to dinner. When they returned home, Defendant, Belinda, and her husband, Lee Radder, sat at the kitchen table and had a few drinks. Belinda went to bed around 11:30 p.m., while Defendant and Radder stayed up and continued drinking.

¶ 3 Shortly after 5:00 a.m. the next morning, officers responded to a 911 call from Defendant. When the first officer arrived he found Defendant kneeling over Radder's body. Radder was dead, having suffered a close contact gunshot wound

to his right eye. In his right hand, Radder was holding Defendant's pistol, his thumb on the trigger.

¶ 4 Defendant was charged with Radder's murder. At trial, the issue was whether Radder committed suicide or was murdered by Defendant. At the end of the trial, the jury found Defendant guilty of second degree murder.

¶ 5 After the verdict, Defendant filed a motion for judgment of acquittal. The court denied the motion, finding there was sufficient evidence to support the verdict.

¶ 6 Defendant also filed a motion for new trial, alleging (1) prosecutorial misconduct and (2) the verdict was contrary to the weight of the evidence. The court determined there was no prosecutorial misconduct, but granted Defendant's motion on the grounds the verdict was contrary to the weight of the evidence. Accordingly, the court set aside the verdict and granted Defendant a new trial.

¶ 7 Based on the court's order, the State moved to dismiss the case without prejudice to pursue an appeal. The court granted the State's motion, and this appeal followed.

DISCUSSION

I. Mootness

¶ 8 Defendant argues this appeal is moot because the State voluntarily dismissed the indictment. Defendant contends that even if we reverse the trial court's order granting the motion for new trial, our decision would have no effect on the parties because there is no pending case. 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.”).

¶ 9 The issue presented is not whether we have jurisdiction over the State's appeal; we have jurisdiction regardless of whether the case was dismissed. SeeArizona Revised Statute (“A.R.S.”) section 13–4032(2)(appellate court has jurisdiction over an appeal by the State from a grant of a motion for new trial); State v. Birmingham,96 Ariz. 109, 111, 392 P.2d 775 (1964)(same). Rather, the issue we must decide is whether the procedure used by the State to pursue its appeal, a voluntary dismissal, renders the appeal moot.

¶ 10 This appeal is not moot. The State is not seeking to reinstate the indictment; it is seeking to reinstate the guilty verdict. We have the authority to reverse an order granting a motion for new trial and “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). When a court grants a defendant's post-verdict motion, the State's success on appeal results “in the reinstatement of the general finding of guilt, rather than in further factual proceedings relating to guilt or innocence.” U.S. v. Morrison,429 U.S. 1, 3–4, 97 S.Ct. 24, 50 L.Ed.2d 1 (1976); see State v. West,226 Ariz. 559, 562, ¶ 13, 250 P.3d 1188, 1191 (2011)(stating that if a verdict is vacated and subsequently dismissed, if the ruling is reversed on appeal, “the verdict of guilt can simply be reinstated”); cf. U.S. v. Villamonte–Marquez,462 U.S. 579, 581 n. 2, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983)(reversal of an order vacating a defendant's convictions would, despite the government's subsequent voluntary dismissal, reinstate the convictions).¹

¶ 11 Nothing in the constitution precludes the State from pursuing an appeal after dismissing the charges. Reinstatement of a guilty verdict would not violate Defendant's double jeopardy rights.

U.S. v. Wilson,420 U.S. 332, 344–45, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); State v. Wilson,207 Ariz. 12, 15, ¶ 11, 82 P.3d 797, 800 (App.2004). Nor is there is any constitutional right prohibiting the State from dismissing a case to pursue an appeal. See State v. Million,120 Ariz. 10, 14–15, 583 P.2d 897, 901–02 (1978)(State may voluntarily dismiss a case to pursue an appeal of an order granting a motion to suppress). Indeed, we have gone so far as to reinstate charges voluntarily dismissed by the State after reversing an order granting a motion to suppress. See State v. Crotty,152 Ariz. 264, 267, 731 P.2d 629, 632 (App.1986)(reversing order suppressing “breathalyzer” results and ordering reinstatement of charges voluntarily dismissed by the State); State v. Soto,195 Ariz. 429, 432, 990 P.2d 23, 26 (App.1999)(reinstating charges and remanding case to the trial court upon reversal of a motion to suppress).

¶ 12 Defendant contends that Criminal Procedure Rule 31.16, which permits a stay of the proceedings when the State appeals an order granting a defendant's motion for new trial, prohibits the State from dismissing the case to pursue an appeal.²We disagree.

¶ 13 Rule 31.16neither creates a substantive right nor prescribes the procedure to enforce that right. See Birmingham,96 Ariz. at 110–11, 392 P.2d 775(rules of criminal procedure do not create a right to appeal; the right to an appeal “can only be given or denied by constitution or the legislature of the [S]tate.”). Rule 31.16provides that, as a general matter, orders in favor of defendants will not be stayed while the State pursues an appeal. The purpose of the Rule is to prevent a defendant from being held in custody while the State pursues an appeal. Ariz. R.Crim. P. 31.16, Cmt.; State ex rel. Berning v. Alfred,186 Ariz. 403, 404, 923 P.2d 869, 870 (App.1996). Rule 31.16also creates an exception to this general rule, permitting a stay when the State appeals an order granting a new trial or an order granting a motion to suppress. Ariz. R.Crim. P. 31.16.

¶ 14 We do not, however, read Rule 31.16as requiringthe State to seek a stay before appealing an order granting a motion for new trial. Indeed, although Rule 31.16allows the State to obtain a stay when appealing an order granting a motion to suppress, we have also permitted the State to dismiss the charges and file an appeal. Million,120 Ariz. at 14–15, 583 P.2d at 901–02; State v. Rosengren,199 Ariz. 112, 115, ¶ 8, 14 P.3d 303, 306 (App.2000)(State permitted to voluntarily dismiss charges and appeal an order suppressing defendant's statements and DUI test results).

¶ 15 In sum, there were no constitutional or procedural grounds barring the State from dismissing the charges and filing an appeal. Accordingly, this appeal is not moot, and we will consider the merits.

II. Motion for New Trial

¶ 16 The State argues the weight of the evidence supported the verdict, and that the trial court abused its discretion in granting Defendant's motion for new trial. Ariz. R.Crim. P. 24.1(c)(1).

A. Standard for Granting a Motion for New Trial

¶ 17 Arizona Rule of Criminal Procedure 24.1(c)sets forth several grounds for granting a new trial. Ariz. R.Crim. P. 24.1(c)(1)–(5); SeeAriz. R. Civ. P. 59(a)(grounds for a new trial in a civil case). One basis for granting a new trial is when the verdict is “contrary to ... the weight of the evidence.” Ariz. R.Crim. P. 24.1(c)(1); State v. McIver,109 Ariz. 71, 72, 505 P.2d 242, 243 (1973); seeAriz. R. Civ. P. 59(a)(8).

¶ 18 Unlike a motion for judgment as a matter of law or acquittal, a trial court ruling on a motion for new trial based on the weight of the evidence does not view the evidence in the light most favorable to sustaining the verdict, nor does it resolve all conflicting inferences in favor of sustaining the verdict.³

State v. Thomas,104 Ariz. 408, 411–12, 454 P.2d 153, 156–57 (1969); General Petroleum Corp. v. Barker,77 Ariz. 235, 243–44, 269 P.2d 729 (1954); State v. Clifton,134 Ariz. 345, 348–49, 656 P.2d 634, 637–38 (App.1982). Rather, the court is permitted to weigh the evidence and make credibility determinations, and it may set aside the verdict and grant a new trial even if there is sufficient evidence to support the verdict. Thomas, id.; General Petroleum, id.; Clifton, id.; see Tibbs v. Florida,457 U.S. 31, 42–43, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)(“A reversal based on the weight of the evidence, moreover, can occur only after the State ... has presented sufficient evidence to support the conviction”).

¶ 19 Given this broader discretion, some cases describe the judge's role as “the ‘thirteenth juror’ (the ninth juror in a civil case).” Hutcherson v. City of Phoenix,192 Ariz. 51, 55, ¶ 23, 961 P.2d 449, 453 (1998); Thomas,104 Ariz. at 412, 454 P.2d at 157; McBride v. Kieckhefer Associates, Inc.,228 Ariz. 262, 267, ¶ 20, 265 P.3d 1061, 1066 (App.2011). This description, however, overstates the judge's role. A judge may not set aside a verdict “merely because, if he had acted as trier of fact, he would have reached a different result,” nor may he substitute his own judgment for that of the jury. Cano v. Neill,12 Ariz.App. 562, 569, 473 P.2d 487 (1970)(citing J. Moore, Federal Practice, § 59.08(5), at 3818–19 (2d ed.1953)); see Hutcherson,192 Ariz. at 56, ¶ 27, 961 P.2d...