State v. Salazar

• Decision Date: 13 June 1995
• Docket Number: Nos. 1,CA-CR,s. 1
• Citation: 898 P.2d 982,182 Ariz. 604
• Parties: STATE of Arizona, Appellee, v. Leo G. SALAZAR, III, Appellant. 93-0412, 1 93-0413.
• Court: Arizona Court of Appeals

Page 982

898 P.2d 982

182 Ariz. 604

STATE of Arizona, Appellee, v. Leo G. SALAZAR, III, Appellant.

Nos. 1 CA-CR 93-0412, 1 CA-CR 93-0413.

Court of Appeals of Arizona Division 1, Department B.

June 13, 1995.

[182 Ariz. 605] Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Div., and Ronald L. Crismon, Asst. Atty. Gen., Phoenix, for appellee.

Edelman and Martin by Donna Lyn Miers, Lakeside, for appellant.

OPINION

LANKFORD, Presiding Judge.

In consolidated appeals, Leo G. Salazar III ("defendant") challenges his convictions and sentences for second-degree murder in 1 CA-CR 93-412 and for possession of marijuana and possession of drug paraphernalia in 1 CA-CR 93-413. We find reversible error in the denial of defendant's motion to disqualify the trial judge and in an order precluding defendant from inquiring about the juvenile probation status of two witnesses for the State.

We view the facts at trial in the light most favorable to sustaining the jury verdicts, resolving all reasonable inferences against the defendant. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).

On March 24, 1992, D.M. travelled from Mesa to Winslow with his roommate, Jesus Quintana. D.M. brought along a .22 caliber pistol he had recently acquired. The following day, while target shooting, D.M. and Quintana met several other persons, including the defendant.

The group decided to drive to Holbrook in D.M.'s car. Quintana brought along approximately one pound of marijuana. When they arrived in Holbrook, defendant said he was able to sell some of the marijuana. They visited a house where defendant arranged a sale of a bag of marijuana.

Later in the evening, D.M., Quintana, and defendant decided to visit the home of an acquaintance, Mike Vigil. At Vigil's apartment, defendant, Vigil and Quintana played a drinking game and consumed large amounts of beer and tequila. A scuffle broke out between Quintana and Vigil. Defendant intervened to stop the altercation and told Vigil that he wasn't afraid to fight him.

Vigil went outside the apartment. D.M. told defendant and Quintana that he wanted to leave and they left the apartment as well. Outside, Vigil pushed Quintana, who responded by tackling Vigil. According to D.M., although Quintana seemed to be in control of the fight, defendant approached Vigil with a broken glass bottle and told him to leave Quintana alone. Defendant then went to D.M.'s car, where D.M. was seated, and asked for the pistol. D.M. handed defendant the weapon, then saw him fire "two shots, straight out."

Quintana and Vigil got up and Vigil walked toward defendant. According to D.M., Vigil had nothing in his hands. D.M.'s view of the two men was blocked, but he heard two shots, then heard Vigil say. "Leo, what are you doing to me?" D.M. then heard two more shots. Defendant got into D.M.'s car and, in reference to Quintana, stated "Nobody fucks with my primo [cousin]." D.M. drove defendant and Quintana to Winslow, where they spent the night. Defendant and Quintana told D.M. that they intended to flee to Mexico. The day after the shooting, D.M., Quintana and defendant were stopped by police outside Payson and arrested without incident. From D.M.'s car, police recovered the .22 caliber handgun and slightly more than one pound of marijuana.

A medical examiner testified that Vigil suffered two bullet wounds that "would have been fatal alone." One bullet entered Vigil's breast bone, penetrated his heart, then lodged there. Another bullet entered Vigil's right lower back and passed through his kidney and liver. Vigil also suffered two non-fatal gunshot wounds. One shot passed through his right arm, near the elbow, then entered his lower back, lodging near his spine. The other shot caused a superficial injury to the front of his arm. The medical examiner was able to offer no opinion regarding the order in which the wounds were inflicted.

Defendant was indicted for second-degree murder and Quintana was indicted for hindering prosecution in Navajo County cause number 92-CR-156. Defendant also was indicted for possession of drug paraphernalia, possession of marijuana for sale, and transportation of marijuana for sale in Navajo County cause number 92-CR-161. D.M. was also indicted for possession of drug paraphernalia, possession of marijuana for sale, transportation of marijuana for sale, and hindering prosecution. However, prior to trial, D.M. entered a plea agreement to transportation of marijuana for sale and agreed to testify truthfully at trial. The indictments against defendant and Quintana were consolidated and they were tried jointly.

At trial, defendant asserted that he shot Vigil in self-defense. Defendant testified that, at the time of the shooting, he walked with a cane as the result of multiple fractures suffered in a motorcycle accident. When he intervened in Vigil's initial scuffle with Salazar inside the apartment, defendant said, Vigil threatened to "fuck [defendant's] crippled ass up." Defendant testified that, while Quintana and Vigil wrestled outside the apartment, he took D.M.'s pistol and fired two shots in the air. At that point, defendant testified, Vigil advanced at him, looking "mad." Because of Vigil's threat several minutes earlier, defendant said he feared that Vigil would try to break his leg or take the gun from his hand. He said he also feared Vigil because Vigil had injured him in a fight several years earlier and because he heard that Vigil had beaten or shot other persons. Defendant said that he shot Vigil when he lunged at him. He recalled firing only one shot.

The jury found defendant guilty of second-degree murder, a class 1 felony, possession of drug paraphernalia, a class 6 felony, and possession of marijuana weighing less than one pound, a class 6 felony. The trial judge sentenced defendant to concurrent presumptive prison terms of 15 years for second-degree murder and 1.5 years for each of the other two charges. Defendant filed timely notices of appeal. He asserts the following:

1. His motion to disqualify the trial judge was erroneously denied;

2. The court erred in precluding inquiry regarding the juvenile probationary status of two witnesses for the State;

3. The court erred in precluding testimony from an expert witness regarding self-defense;

4. The court erred in denying his motion to sever his trial from Quintana's; and

5. The court erred in admitting evidence of a prior bad act.

I.

We first consider whether the court erred in denying the motion to disqualify. After defendant's case was assigned to Judge Bret Huggins, defendant's counsel, David Martin, undertook representation of Judge Huggins' former secretary in a wrongful termination action against the judge. After the civil summons and complaint were served on Judge Huggins in December 1992, Martin filed a motion in this case to disqualify Judge Huggins for cause. The motion to disqualify was referred to a visiting judge, Judge Marilyn Riddel, for determination.

At a hearing, defendant argued that Huggins' disqualification was required under former Canon 3, Code of Judicial Conduct, Rule 81, Rules of the Arizona Supreme Court. The State did not oppose disqualification of Judge Huggins. Judge Riddel denied the motion. ¹ Judge Huggins presided at trial. On appeal, defendant argues that Judge Riddel erred in denying the motion to disqualify Judge Huggins.

Initially, we reject the State's contention that this issue was waived because defendant did not challenge Judge Riddel's ruling by way of special action. The State offers no direct support for its argument, and the authority we have found is to the contrary. See W. Kobylak, Review of Federal Judge's Grant or Denial of Motion to Recuse, 64 A.L.R.Fed. 433, 444 n. 22 (1983 and Supp.1994) (noting that federal court appellate review of disqualification decision is "an established rule"); People v. Mackey, 175 A.D.2d 346, 347-48, 572 N.Y.S.2d 424, 426 (1991) (rejecting claim that failure to pursue interlocutory challenge to disqualification order waived issue on appeal from conviction).

The State asserts that limiting a defendant to relief by special action is required by analogy to Atwood, in which our supreme court stated that issues affecting a grand jury's charging decision were beyond review on appeal. 171 Ariz. at 601, 832 P.2d at 618. However, Atwood makes clear that this result is mandated by the fact that a trial jury's guilty verdict necessarily renders any defect in the grand jury process harmless. Id. A far different issue is presented by a claim regarding judicial disqualification. An error in deciding that claim may cast doubt on the integrity of the fact-finding process at trial, and is certainly not harmless as a matter of course. We conclude that this claim is preserved for appeal.

A party seeking a judge's disqualification must prove the grounds for disqualification by a preponderance of the evidence. See State v. Carver, 160 Ariz. 167, 172, 771 P.2d 1382, 1387 (1989). This Court will not overturn a trial court's ruling on a motion for change of judge for cause absent an abuse of discretion. State v. Perkins, 141 Ariz. 278, 286, 686 P.2d 1248, 1256 (1984).

Judge Riddel abused her discretion in denying a motion to disqualify Judge Huggins from presiding over a trial in which Martin was participating. "Even where there is no actual bias, justice must appear fair." McElhanon v. Hing, 151 Ariz. 403, 411, 728 P.2d 273, 281 (1986), cert. denied 481 U.S. 1030, 107 S.Ct. 1956, 95 L.Ed.2d 529 (1987). Two provisions of the Code of Judicial Conduct in effect at the time of defendant's trial cast light on the issue: former Canon 3(C), which addresses a judge's disqualification from a proceeding in which his impartiality may reasonably be questioned, and former Canon 2, which obligates judges to avoid the appearance of impropriety and conduct themselves in a...