State v. Huffman

• Decision Date: 28 August 2009
• Docket Number: No. 2 CA-CR 2008-0100.,2 CA-CR 2008-0100.
• Citation: 222 Ariz. 416,215 P.3d 390
• Parties: The STATE of Arizona, Appellee, v. Joshua Paul Eugene HUFFMAN, Appellant.
• Court: Arizona Court of Appeals

215 P.3d 390

222 Ariz. 416

The STATE of Arizona, Appellee, v. Joshua Paul Eugene HUFFMAN, Appellant.

No. 2 CA-CR 2008-0100.

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

August 28, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and David A. Sullivan, Tucson, Attorneys for Appellee.

Harriette P. Levitt, Tucson, Attorney for Appellant.

OPINION

VÁSQUEZ, Judge.

¶ 1 After two previous trials had ended in hung juries, a third jury found appellant Joshua Huffman guilty of sexual conduct with a minor under fifteen years of age, two counts of aggravated assault of a minor under fifteen years of age, and two counts of kidnapping, all dangerous crimes against children, and two counts of armed robbery. The trial court sentenced him to consecutive, enhanced, presumptive prison terms totaling eighty-eight years. Before trial, Huffman had moved to dismiss the charges on the ground that a third trial would violate his double jeopardy and due process rights under the United States and Arizona Constitutions. In this appeal, Huffman challenges the court's denial of that motion. For the reasons discussed below, we affirm.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). On January 22, 2006, J. and C., both minors, were walking in the Rillito Wash when two men approached and introduced themselves as Josh and Obi. After engaging J. and C. in conversation and inviting them to smoke marijuana, the men ordered them at gunpoint into one of the wash's drainage tunnels where they took C.'s purse and J.'s watch, knife, and lighter. Obi then pointed a gun at J. while Josh forced C. to perform oral sex on him. Obi and Josh switched places, and, while Obi forced C. to perform oral sex on him, Josh searched J.'s pockets. Afterward, the men told J. and C. to walk farther into the tunnel and count to at least five thousand before coming out. J. and C. continued walking until they eventually came to a manhole and climbed out.

¶ 3 J. and C. told their parents what had happened, and their parents called the police. J. informed a police officer that he had recognized one of the men as one of the "Cactus Killers," a group of men who had vandalized saguaro cacti in the area. A detective then compiled photographic lineups that included photographs of "persons of interest" in the Cactus Killers case, and J. identified Huffman as one of the assailants. During a subsequent search of Huffman's bedroom, police discovered some of J.'s and C.'s property, and Huffman was then arrested.

¶ 4 Huffman's first two trials ended in mistrials when neither jury could reach a verdict. Before his third trial, he filed a motion to dismiss the indictment, arguing an additional trial would violate his rights under the Double Jeopardy Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution as well as the analogous provisions in the Arizona Constitution. The trial court denied the motion, and the jury found Huffman guilty of all charges. The court sentenced him as noted above, and this appeal followed.

Discussion

I. Double Jeopardy

¶ 5 Huffman asserts that "constitutional principles against double jeopardy barred a third trial in this case."¹ He acknowledges that, "[n]ormally, a retrial after a hung jury does not violate the double jeopardy clause." But, he contends, under the circumstances of this case, "[b]y forcing [him] to defend himself in a third trial, the [trial] court denied [his] constitutional rights to due process as guaranteed by the double jeopardy clause to the U.S. and Arizona constitutions." He argues the court therefore "should [have] exercise[d] its authority to dismiss [the] case." We review a trial court's ruling on a motion to dismiss for an abuse of discretion. State v. Chavez, 208 Ariz. 606, ¶ 2, 96 P.3d 1093, 1094 (App.2004).

¶ 6 "The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant against multiple punishments or repeated prosecutions for the same offense and is applicable to the states through the Fourteenth Amendment." McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986). But, as Huffman concedes, double jeopardy protections do not prohibit a subsequent prosecution after a mistrial due to a hung jury. See Lemke v. Rayes, 213 Ariz. 232, ¶ 19, 141 P.3d 407, 414 (App.2006); see also Richardson v. United States, 468 U.S. 317, 323-24, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984). When a jury is deadlocked, a "trial court properly exercise[s] its sound discretion in declaring a mistrial. `Under such circumstances jeopardy does not [terminate] and there is no limit to the number of trials but the discretion of the court.'" State v. Marks, 113 Ariz. 71, 73, 546 P.2d 807, 809 (1976), quoting State v. Woodring, 95 Ariz. 84, 85-86, 386 P.2d 851, 852 (1963).

¶ 7 Huffman nevertheless relies on a number of cases he contends support dismissal under the circumstances of this case. See State v. Moriwake, 65 Haw. 47, 647 P.2d 705, 712-13 (1982); State v. Abbati, 99 N.J. 418, 493 A.2d 513, 517 (1985); State v. Witt, 572 S.W.2d 913, 917 (Tenn.1978); State v. Sauve, 164 Vt. 134, 666 A.2d 1164, 1164, 1169 (1995).² But, to the extent he argues these cases stand for the proposition that the Double Jeopardy Clause, standing alone, prohibits retrial after successive hung juries based on fundamental fairness or due process grounds, he is mistaken. In each of the cited cases, the reviewing courts specifically rejected any claim by the defendant that the Double Jeopardy Clause prohibited retrial, and they examined fundamental fairness as an analytically distinct issue. Moriwake, 647 P.2d at 711-12; Abbati, 493 A.2d at 517; Witt, 572 S.W.2d at 916-17; Sauve, 666 A.2d at 1167-68, 1170 n. 3. We therefore reject Huffman's claim that the trial court erred in denying his motion to dismiss on double jeopardy grounds.

II. Due Process

¶ 8 In addition to his double jeopardy claim, Huffman raises a separate claim that he "was denied his constitutional right[] to due process by virtue of the [trial] court's denial of his motion to dismiss." He contends a third trial subjected him to "[t]he anxiety, embarrassment and expense [of] . . . continued criminal reprosecution . . . where no new evidence exist[ed]" and thus was improper. In support of his argument, Huffman draws on the out-of-state cases noted above and urges this court to adopt their reasoning and hold that, in the interests of justice, fundamental fairness permits a trial court to dismiss charges after multiple hung juries have resulted in mistrials. See Moriwake, 647 P.2d at 712-13 (trial court has inherent authority to dismiss indictment, following mistrials caused by hung juries, after balancing interests of state against fairness to defendant and orderly functioning of court); Abbati, 493 A.2d at 517 (court's inherent authority to dismiss after mistrials caused by hung juries derived from precepts of fundamental fairness and judiciary's responsibility for efficient administration of criminal justice system and ability to fashion equitable remedies); Witt, 572 S.W.2d at 917 (courts have inherent authority to dismiss where "probability of continued hung juries is great"); Sauve, 666 A.2d at 1169 (repeated prosecution following hung juries "raises issues concerning traditional notions of fundamental fairness and substantial justice").

¶ 9 Our courts have not addressed whether a successive prosecution that does not violate double jeopardy principles may still violate a defendant's due process rights. Other jurisdictions treat double jeopardy and due process considerations separately and, regarding the latter, permit trial courts to consider a wide variety of factors in determining whether, in the interests of justice, a successive prosecution may go forward. See, e.g., United States v. Ingram, 412 F.Supp. 384, 385-86 (D.D.C.1976); Ex parte Anderson, 457 So.2d 446, 450-51 (Ala.1984); Moriwake, 647 P.2d at 712-13; Abbati, 493 A.2d at 517; State v. Gonzales, 132 N.M. 420, 49 P.3d 681, 685-86 (App.2002); Witt, 572 S.W.2d at 917; Sauve, 666 A.2d at 1164, 1169.

¶ 10 Although not cited by either party, Rule 16.6, Ariz. R.Crim. P., is instructive on this issue. Rule 16 governs pretrial motion practice generally, and Rule 16.6 governs dismissals of prosecutions in particular. Subsection (b) of the rule permits dismissal on a defendant's motion "upon finding that the indictment, information, or complaint is insufficient as a matter of law," but the comment to that rule notes that dismissal can be based on any legally recognized ground.³ Furthermore, although not explicitly stated in the rule, a trial court also has authority to dismiss a prosecution sua sponte, even absent a motion by either party. See State v. Hannah, 118 Ariz. 610, 611, 578 P.2d 1039, 1040 (App.1978). Rule 16.6(d), however, applies broadly to all dismissals and provides, in pertinent part: "Dismissal of a prosecution shall be without prejudice to commencement of another prosecution, unless the court order finds that the interests of justice require that the dismissal be with prejudice." Thus, although "[t]he trial court has the inherent power to dismiss a prosecution," it may not dismiss an indictment with prejudice absent a finding that "the interests of justice" require it. Hannah, 118 Ariz. at 611, 578 P.2d at 1040.

¶ 11 We have found no Arizona cases interpreting the meaning of "the interests of justice" under circumstances analogous to those in this case. The majority of the cases that have analyzed Rule 16.6(d) have done so in the context of speedy trial violations. In that area, courts have concluded that the interests of justice require dismissal with prejudice only when the prosecutor has delayed in order to obtain a tactical advantage or harass the defendant and the defendant has...