State v. Jackson
| Decision Date | 08 September 2011 |
| Docket Number | 1 CA-CR 10-0123,1 CA-CR 10-0289,1 CA-CR 10-0114 |
| Parties | STATE OF ARIZONA, Appellant, v. DONNIE JACKSON, Appellee. |
| Court | Arizona Court of Appeals |
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
(Consolidated)
MEMORANDUM DECISION(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Cause Nos. CR2008-030406-001SE
The Honorable Timothy J. Ryan, Judge
William G. Montgomery, Maricopa County Attorney
By Lisa Marie Martin, Deputy County Attorney
Attorneys for Appellant
Phoenix
James J. Haas, Maricopa County Public Defender
By Terry J. Adams, Deputy Public Defender
Attorneys for Appellee
Phoenix
¶1 In this consolidated appeal, the State of Arizona, by and through the Maricopa County Attorney, appeals the trial court's orders dismissing criminal charges against Donnie Jackson withprejudice. For the following reasons, we vacate the dismissal with prejudice of the charges against Jackson and remand to the trial court with instructions to dismiss the 2008 charges without prejudice and to reinstate the 2009 charges against Jackson.
¶2 The following facts are supported by the record: On October 30, 2008, police arrested Jackson for a violent home invasion that occurred on October 22, 2008. The next day, the Maricopa County Attorney's Office charged Jackson by direct complaint with two counts of armed robbery, each a class two dangerous felony. See Ariz. Rev. Stat. ("A.R.S.") § 13-1904 (2010).2 A grand jury issued a supervening indictment on November 7, 2008, and the case was assigned cause no. CR2008-030406-001SE in the Maricopa County Superior Court ("the 2008 case").
¶3 Given the nature of the allegations and Jackson's alleged prior criminal record, the trial court set bond at $250,000, and Jackson remained incarcerated throughout pendency of the case. At his November 17, 2008 arraignment, Jackson entered a plea of not guilty. At that time, the last day for trial was April 16, 2009. See Ariz. R. Crim. P. ("Rule") 8.2(a)(1) (). Dueto numerous time extensions occasioned by the defense throughout pendency of the case, however, the last day eventually became December 5, 2009. See Ariz. R. Crim. P. 8.2(d).
¶4 The State and Jackson entered plea negotiations, and on April 1, 2009, they engaged in a settlement conference, at which Jackson was advised the State was considering additional charges, including kidnapping and aggravated assault. Jackson, however, declined the State's plea offer and indicated he was willing to take the risk of the additional charges being brought against him before trial.
¶5 In April 2009, Jackson filed a notice that he planned to call an identification expert at trial, ostensibly to challenge the victims' identification of him as one of the perpetrators. At the June 9, 2009 status conference, defense counsel agreed to exclude time to allow scheduling for the expert witness and noted that the witness would only be available To accommodate defense counsel's request, the trial court (Judge Emmet J. Ronan of the Southeast Facility of the Superior Court) set trial for September 14, 2009, and a trial management conference for August 31, 2009.
¶6 On July 24, 2009, the trial court held an evidentiary hearing on a defense motion to suppress evidence of a handgunseized during Jackson's arrest. The court took the matter under advisement.
¶7 On August 25, 2009, the State filed a motion to continue the trial until September 28 due to the unavailability of one of its witnesses.3 Defense counsel did not object, and at the August 31 trial management conference, the court granted the State's motion. The court also set a new trial management conference for September 21. At that time, the last day for trial was October 14, 2009.
¶8 On September 17, 2009, defense counsel filed a motion to continue, contending that the defense's expert witness was unavailable until sometime in early November.4 At the September 21 trial management conference, coverage counsel appeared for both sides. Defense counsel requested that the trial management conference be reset for September 24, 2009, because counsel did not know about the availability of her expert. Defense counsel also agreed to waive time, and the trial court vacated the September 28 trial date.
¶9 On September 24, 2009, defense counsel renewed her request for a continuance. After noting that her expert had scheduled a vacation and would be out of the country, defensecounsel stated that the next available date for her expert would be Monday, November 16. Coverage counsel for the State agreed to the continuance, and the court reset trial for November 16, scheduled a trial management conference for Monday, November 9, and excluded time, making the new last day December 5, 2009. After the court set the dates, defense counsel advised that her expert would be available to testify on either November 16 or 18, and counsel intended to have the expert testify on November 18.
¶10 In the meantime, the prosecutor in the 2008 case (Mr. Sean Kelly) was also assigned to the case of State v. Careaga, which was also assigned to Judge Ronan.5 At the October 5, 2009 trial management conference in the Careaga case, defense counsel requested a continuance. Coverage counsel for Mr. Kelly noted that the prosecutor's calendar indicated he was "available the week of the 9th, 23rd or 30th of November." The court reset the Careaga trial for Monday, November 9, and set a trial management conference for Monday, November 2. The court also advised counsel that the Careaga case was a "priority" case that would "not be continued for any other trial conflicts." At the November 2 trial management conference, the court confirmed the November 9 trial date, stating"[t]here will be an order affirming trial for next Monday on the master calendar before Judge [Timothy J.] Ryan."6
¶11 On November 9, the court (Judge Ronan) held a trial management conference in the 2008 case. Coverage counsel again appeared for the prosecutor, and defense counsel reminded the court that her expert witness planned to testify on November 18. The court confirmed that trial would begin on November 16 and advised counsel that the case would be transferred downtown to "the master calendar [before Judge Ryan], but we will send them a note that youhave the witness." Defense counsel also inquired about the status of the motion to suppress the handgun, and noted that the court had previously indicated its "inclination was to listen to what the witnesses had to say [at trial] before making a final ruling." The court advised counsel that the motion would have to be ruled on by "the judge you're placed with."
¶12 Despite the fact that both sides' counsel were prepared for trial in the Careaga case, that case was continued until November 10,7 and it was later continued until November 12, due to court unavailability. On Thursday, November 12, 2009, the court (Judge Ryan) assigned the Careaga case to Commissioner Julie P. Newell and, to accommodate defense counsel in that case, ordered that jury selection in that priority trial would begin the afternoon of November 16. The court scheduled a final trial management conference in the Careaga case for the afternoon of Friday, November 13.
¶13 Later in the afternoon of November 12, the prosecutor filed a notice of trial conflict in the 2008 case, explaining that trial in that case, which was scheduled to begin November 16, would conflict with his scheduled trial in the Careaga case, which The prosecutor noted that trial in the Careaga case was expected to continue through at least Wednesday, November 18, and he requested that, due to numerous other scheduling conflicts, trial in the 2008 case be rescheduled for late December or early January.8
¶14 On Monday morning, November 16, counsel in the 2008 case met before Judge Ryan, the master calendar assignment judge, who considered the State's notice of trial conflict, characterizing it as a motion to continue. Defense counsel objected to a continuance, explaining, Defense counsel noted the trial had been set with the schedule of the defense's expert witness in mind. Judge Ryan asked how the case came to be on his calendar, and defense counsel explained, "Because Judge Ronan decided at our TMC [trial management conference] last Monday that he had 15 trials set for today, and that our case did not take precedent, and he sent us down here." Defense counsel further noted that Judge Ronan had held "a full evidentiary hearing" on the motion to suppress inJuly, but had still not ruled on the motion because "he wanted to hear what the witnesses said at trial before making a final decision." The court questioned how counsel could "make opening statements if you don't know what the evidence will be," and defense counsel agreed that the issue should have been resolved earlier because "we don't know . . . if the evidence is going to come in or not." The court then noted that it did not "have any judges left to pin a trial to this morning." Defense counsel replied that "it's not my client's problem" and warned the...
To continue reading
Request your trial