State v. GONZALES-PEREZ

• Decision Date: 10 December 2002
• Docket Number: No. 2 CA-CR 2001-0067.,2 CA-CR 2001-0067.
• Citation: 204 Ariz. 200,62 P.3d 126
• Parties: The STATE of Arizona, Appellant, v. Fernando GONZALES-PEREZ aka Gilardo Felix-Araujo and Carlos Enrique Ramos, Appellees.
• Court: Arizona Court of Appeals

62 P.3d 126

204 Ariz. 200

The STATE of Arizona, Appellant, v. Fernando GONZALES-PEREZ aka Gilardo Felix-Araujo and Carlos Enrique Ramos, Appellees.

No. -0067.

Court of Appeals of Arizona, Division 2, Department B.

December 10, 2002.

Redesignated as Opinion January 30, 2003.

Barbara LaWall, Pima County Attorney By Elizabeth Hurley, Tucson, Attorneys for Appellant.

Law Office of Walter P. Nash III, P.C. By William J. Kirchner, Tucson, Attorneys for Appellee Gonzales-Perez.

Polis & Hartshorne, P.C. By Bertram Polis, Tucson, Attorneys for Appellee Ramos.

OPINION

ESPINOSA, Chief Judge.

¶ 1 Defendants Fernando Gonzales-Perez, aka Gildardo Felix-Araujo, and Carlos Enrique Ramos were each charged with one count of sale of a narcotic drug. Following the state's repeated failures to meet disclosure deadlines, the trial court granted the state's motion to dismiss the indictment but, over the state's objection and its request to withdraw the motion, did so with prejudice as a sanction for the state's delays. The state appeals from that order pursuant to A.R.S. § 13-4032(1). Because the defendants did not demonstrate and the record does not reflect that the defendants were actually prejudiced by the state's delays and discovery violations, we reverse the trial court's order dismissing the indictment and remand for further proceedings.

Background

¶ 2 The defendants were arrested in August 2000 and charged with one count of sale of a narcotic drug following an alleged drug purchase involving multiple police agencies and a confidential informant. Later that month, the state disclosed a few police reports and a list of potential witnesses, including approximately ten law enforcement officers. In September, the defendants requested additional disclosure, specifically police reports from the identified officers and any tape recordings of either the transaction or telephone conversations between the informant and the defendants. The defendants had not received the requested material by the pretrial conference on November 7, and the court ordered the state to complete disclosure by Friday, November 24. On Monday, November 27, the state disclosed additional police reports to the defendants including transcripts of defendants' statements to police officers but omitted any information concerning the informant except his name.¹

¶ 3 In December, the defendants filed a motion for disclosure concerning the informant and a motion to preclude all evidence disclosed after November 24, including any testimony by the informant. At a hearing in January 2001, the trial court precluded the informant from testifying at trial as a sanction for the state's late disclosure. Shortly thereafter, the state disclosed two tape recordings of telephone conversations and another police report. Then, during a February 1 pretrial interview a few weeks before the trial was scheduled to begin, the defendants and the prosecutor apparently first discovered that a police officer had recorded electronic surveillance of the alleged drug transaction. The defendants immediately filed a motion to preclude this evidence on several grounds, including that the disclosure violated the court's November 24 disclosure deadline. The state responded by filing a motion to dismiss the indictments without prejudice in order for it to "reevaluate the case." See Ariz. R.Crim. P. 16.6(d), 16A A.R.S. Although the trial court's reasoning was not entirely clear at the time of the hearing, it dismissed the prosecution with prejudice. Later, it issued a written order stating, inter alia, "Because the delay, litigation, and expense were needless and unjustifiable, the resulting expense and delay in this case prejudice[d] the defense unreasonably."

Discussion

¶ 4 The state contends dismissal with prejudice was improper because the defendants were not prejudiced, it had not acted in bad faith, and the dismissal was solely punitive absent any showing of actual prejudice to the defense. The state also suggests it should not be held accountable for failing to disclose material possessed by police officers or detectives. We reject that notion at the outset. In the course of investigating crimes, law enforcement officers "operate[ ] as an arm of the prosecutor" for purposes of the disclosure rules. Carpenter v. Superior Court, 176 Ariz. 486, 490, 862 P.2d 246, 250 (App.1993). "The State must disclose not only `information in the possession or control of members of the prosecutor's staff,' but also that within the possession or control `of any other persons who have participated in the investigation or evaluation of the case.'" State v. Meza, 203 Ariz. 50, ¶ 21, 50 P.3d 407, ¶ 21 (App.2002), quoting Ariz. R.Crim. P. 15.1(d).

¶ 5 When confronted with a disclosure violation, a trial court may "impose any sanction which it finds just under the circumstances," Ariz. R.Crim. P. 15.7(a), including dismissal. See State v. Lopez, 156 Ariz. 573, 754 P.2d 300 (App.1987)

.² However, a trial court is constrained from dismissing a prosecution with prejudice "unless the court order finds that the interests of justice require" it to do so. Ariz. R.Crim. P. 16.6(d), 16A A.R.S. It is well settled that Rule 16.6 "favors dismissal without prejudice." State v. Gilbert, 172 Ariz. 402, 404, 837 P.2d 1137, 1139 (App.1991); Quigley v. City Court, 132 Ariz. 35, 643 P.2d 738 (App.1982). "The most important factor to consider in whether a dismissal should be with or without prejudice is whether delay in the prosecution will result in prejudice to the defendant." Gilbert, 172 Ariz. at 404,

837 P.2d at 1139. We review for an abuse of discretion a trial court's decision to dismiss an indictment with prejudice. Id.

¶ 6 In Lopez, the defendant sought to obtain recordings of radio transmissions between officers who had stopped the vehicle he had been driving. After Lopez had requested copies of the transmissions, the Department of Public Safety destroyed its recordings pursuant to a departmental policy. The content of the transmissions could not be determined, and the trial court granted Lopez's motion to dismiss the prosecution with prejudice. This court upheld that ruling as a valid exercise of the trial court's authority to impose disclosure sanctions, finding that a "`reasonable possibility'" existed that the evidence would have been favorable to the defendant and it went to a crucial issue in the case. 156 Ariz. at 575,754 P.2d at 302,quoting State v. Boyd, 29 Wash.App. 584, 629 P.2d 930, 934 (1981)

; see also Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (due process requires state to disclose exculpatory evidence material to the question of guilt or punishment). In his concurring opinion in Lopez, Judge Livermore specifically acknowledged that in most cases dismissal with prejudice would be "too severe" and the more appropriate sanction would be suppression of the evidence, but noted that the entire case turned on the validity of the vehicle stop. 156 Ariz. at 575,

754 P.2d at 302.

¶ 7 Other cases upholding a dismissal with prejudice as a discovery sanction are difficult to find in Arizona. Defendant Ramos cites several cases from other jurisdictions, including State v. Clovis, 248 Kan. 313, 807 P.2d 127 (1991), wherein the Kansas Supreme Court upheld the dismissal of two charges in a multicount narcotics indictment because of the state's continued refusal to reveal a confidential informant as ordered by the trial court. After the defendant had requested production of the informant's name and address, the state had suggested, in order to keep confidential the informant's address, that the defendant be allowed only to interview the informant, and the trial court ordered that the informant be contacted only by counsel. Months later, the state refused to disclose any information about the informant and, at another hearing, argued he had only provided probable cause and would not testify at trial. The trial court found the informant's identity probative on several issues relating to search warrants in the case and again ordered the state to make disclosure. Despite that order and several more which followed, the state repeatedly refused to comply. Two days before trial, the court granted a defense motion to dismiss. The Kansas Supreme Court found the dismissal justified by "the prosecutor's continuing disregard of the [trial] court's order to disclose the [informant]," as well as attendant delay infringing on the defendant's speedy trial rights, and specifically noted that no lesser sanction would accomplish the objective of disclosing the informant. 807 P.2d at 138.

¶ 8 In the case at hand, the state's violations are of a different nature altogether than those in Lopez and Clovis. Unlike in Lopez, there is no suggestion here that any evidence has been destroyed, and the fact that the defendants moved to preclude it shows that the evidence was not exculpatory; accordingly, no Brady violation occurred.³ There is also no evidence, as in Clovis, of willful refusals to comply with the trial court's orders, any speedy trial problems, or that less drastic sanctions were either unavailable or incapable of curing the state's violations. At the January hearing, the trial court expressly found that the prosecution was not at fault for the late disclosure of the informant; it nevertheless imposed a measured sanction of preclusion of the informant as a consequence for "glaring and obvious deficiencies in this case." Likewise, at the February hearing, the court stated: "[T]he police were dragging their feet. And I don't think they were deliberately hiding things... either. But there was a kind of cavalier, dilatory attitude about it, ... creat[ing] an appearance that the police agencies were not operating in good faith...."

¶ 9 In other cases involving disclosure violations by the state, our supreme court has upheld trial courts' refusals to dismiss prosecutions. In State v. Dupuy, 116 Ariz. 151...