State v. Leon
| Decision Date | 03 December 2013 |
| Docket Number | No. 2 CA-CR 2011-0395,2 CA-CR 2011-0395 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JOSHUA MICHAEL LEON, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge
AFFIRMED IN PART; VACATED IN PART
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix and
Nicholas Klingerman, Assistant Attorney General, Tucson
Counsel for Appellee
Altfeld & Battaile, P.C., Tucson
By Robert A. Kerry
Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 After a jury trial, Joshua Leon was found guilty of second-degree murder and sentenced to an aggravated, eighteen-year prison term. On appeal, he argues the trial court erred by permitting his cellmate to testify at trial and by denying his motion for a new trial based on gang-related references at trial, which he contends caused juror apprehension and misconduct. For the following reasons, we affirm in part and vacate in part.
¶2 "We view the evidence in the light most favorable to upholding the jury's verdict." State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). One evening in October 2009, Maxine S., Amina R., and Kalette M. approached Leon's girlfriend, Claudia R., on a corner in South Tucson. The women asked to buy drugs and, when Claudia agreed, they proceeded to beat and rob her. Claudia yelled for Leon and, as he approached, the three women fled. Leon pursued them and when the women stopped running, he punched one or more of them and stabbed Maxine in the chest. Maxine's heart was punctured and she later died. The weapon was not recovered.
¶3 After being charged with first-degree murder, Leon was convicted and sentenced as described above and now appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶4 Leon first argues the trial court erred by denying his motion to dismiss or to preclude testimony of his former cellmate,Elvin L. Leon and Elvin were housed together from March 22 to April 11, 2011. On Friday, April 8, Elvin telephoned his attorney, K. Sweeney, an assistant public defender, and said he had information about "a murder." Sweeney met with Elvin on Sunday, April 10, and Elvin told her he wanted to be a witness against Leon and requested a meeting with prosecutors.
¶5 According to Elvin, Sweeney told him he "needed to know the people, the places and the names[,] . . . to have specifics." At some point during the meeting, Sweeney realized that Leon was a former client. Sweeney testified she had served as "second chair" in Leon's defense against the current charges "for probably the first two weeks," before the public defender's office withdrew due to a conflict.1 That office, with D. Edminson-O'Brien as Leon's appointed attorney, had represented Leon for approximately two months from November 2, 2009 to January 5, 2010.
¶6 Sweeney made arrangements for Elvin to meet with prosecutors on Monday, April 11, the day before Leon's trial was scheduled to begin. At the meeting, Sweeney sat with Elvin and sometime that day, according to Elvin, informed him she would not be able to continue to represent him "and that the public defender's office would [not] be able to represent [him] any longer because they had handled something in Mr. Leon's behalf." Sweeney denied telling Elvin any details about Leon's case, which Elvin confirmed.
Later that day, the prosecution informed counsel for Leon that the state intended to introduce Elvin as a witness, and the following morning Leon's attorney orally moved to preclude Elvin's testimony. When the motion was denied, Leon requested a continuance, which was granted.
¶7 Leon subsequently moved to dismiss the case or preclude Elvin's testimony, contending his constitutional right to counsel had been violated by Sweeney's conduct. He asserted the prosecution ignored Sweeney's conflict in its "rush to get [Elvin] signed up before the trial was to start" despite its duty to see "a defendant's rights are not thoroughly trampled, even when the defendant's [former] attorney is blind to those rights." Leon maintained that "fundamental fairness . . . dictat[ed] dismissal of the[] charges as the only fair remedy."
¶8 After a hearing on Leon's motion at which both Sweeney and Elvin testified, the trial court found that Sweeney had "violat[ed her] ethical responsibilities" and made "a serious mistake." However, it explicitly found no wrongdoing by the prosecution. "The Court [did] not believe [the prosecutor] remembered that the Public Defender's office was involved as counsel for the defendant at some point, nor would the State have necessarily known or remembered that Sweeney was specifically representing the defendant." The court decided dismissal was "not an appropriate sanction in a case of this magnitude," and noted, "the remedy isn't to dismiss a murder case against Mr. Leon because Ms. Sweeney made a mistake." The court denied Leon's motion to dismiss and his motion to preclude Elvin's testimony.
¶9 Leon argues "[g]iven the egregious nature of the conduct of the defense counsel and the prosecutor, the Court should have dismissed the case as a warning to counsel in similar cases not to engage in this type of conduct in the future," and further asserts that the court should have dismissed the case "to cure any possible conflict." We review a ruling on a motion to dismiss for abuse of discretion, State v. Boggs, 218 Ariz. 325, ¶ 50, 185 P.3d 111, 122 (2008),and defer to the trial court's factual findings unless clearly erroneous, State v. O'Dell, 202 Ariz. 453, ¶ 8, 46 P.3d 1074, 1077-78 (App. 2002).
¶10 Leon asserts he was prejudiced by Sweeney's conduct because, had she "not promptly advised Elvin . . . on how to effectively approach the prosecutor's office to peddle his testimony, if she had not taken the trouble to visit [Elvin] in jail on a Sunday, and if she had not immediately contacted the prosecutor[']s office to arrange for a [meeting] the very next morning, [Elvin] would not have been available for trial that was to start that Tuesday." And, Leon maintains the prosecutor's office knew Sweeney had previously represented Leon yet "vigorously pursued [Elvin] as a witness." He concludes both the public defender's office and the state "acted in concert" to deprive him of "a fair trial with effective assistance of counsel," and this conduct should be "meaningfully cens[ured]."
¶11 Dismissal as a sanction is rare, see State v. Young, 149 Ariz. 580, 585, 720 P.2d 965, 970 (App. 1986), and necessarily directed at improper conduct by the state. Indeed, Leon cites United States v. Aguilar, 831 F. Supp. 2d 1180 (C.D. Cal. 2011), for the proposition that dismissal may be an appropriate remedy "where prejudice to the defendant results and the prosecutorial misconduct is flagrant." Id. at 1208. But dismissal of an indictment with prejudice due to prosecutorial misconduct occurs only "when the evidence is irrevocably tainted or there exists a pattern of misconduct that is prevalent or continuous." Young, 149 Ariz. at 585, 720 P.2d at 970; see also State v. Pecard, 196 Ariz. 371, ¶ 39, 998 P.2d 453, 461 (App. 1999) (). We need not conduct that analysis, however, because the trial court expressly found no wrongdoing on the part of prosecutors. Accepting that finding as we must based on the record before us, see O'Dell, 202 Ariz. 453, ¶ 8, 46 P.3d 1077-78, dismissal for prosecutorial misconduct was clearly not appropriate, and we find no abuse of discretion by the trial court.
¶12 Leon next argues the trial court erred by denying his motion to preclude Elvin's testimony, and asks this court to remand the case for "a new trial with the testimony of Elvin . . . precluded," because Leon "was denied a fair trial and his right to uncompromised legal representation." This court reviews a trial court's decision to permit a witness to testify for an abuse of discretion, see State v. Carlos, 199 Ariz. 273, ¶ 10, 17 P.3d 118, 122 (App. 2001), but reviews de novo alleged violations of a defendant's constitutional right to counsel, see State v. Martinez, 221 Ariz. 383, 386, 212 P.3d 75, 78 (App. 2009).
¶13 The trial court found no evidence that Sweeney had provided Elvin with any details about Leon's case, despite testimony that she assisted him in preparing for his meeting with prosecutors.2 As Leon notes, Sweeney arranged for the meeting and apparently appeared with him for a least a portion of it. The court permitted Elvin to testify at trial, finding that the "information would have come before the Court in any event."3
¶14 The Sixth Amendment of the United States Constitution, the Arizona Constitution, art. II, § 24, and Rule 6.1, Ariz. R. Crim. P., assure a defendant the right to assistance of counsel. That right includes the effective assistance of counsel to ensure a fair trial, see State v. Jenkins, 148 Ariz. 463, 465, 715 P.2d 716, 718 (1986), and "contemplates the services of an attorney devoted solely to the interests of his client." Von Moltke v. Gillies, 332 U.S. 708, 725 (1948); see also Maricopa Cnty. Public Defender's Office v. Superior Court, 187 Ariz. 162, 165, 927 P.2d 822, 825 (App. 1996) (). "Counsel must be free to zealously defend the accused in a conflict-free environment." Maricopa Cnty. Public Defender's Office, ...
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