State v. Sanchez-Equihua

• Decision Date: 19 May 2014
• Docket Number: No. 2 CA–CR 2013–0003.,2 CA–CR 2013–0003.
• Citation: 326 P.3d 321,235 Ariz. 54
• Parties: The STATE of Arizona, Appellee, v. Veronica SANCHEZ–EQUIHUA, Appellant.
• Court: Arizona Court of Appeals

235 Ariz. 54

326 P.3d 321

The STATE of Arizona, Appellee,

v.Veronica SANCHEZ–EQUIHUA, Appellant.

No. 2 CA–CR 2013–0003.

Court of Appeals of Arizona,

Division 2.

May 19, 2014.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Amy Pignatella Cain, Assistant Attorney General, Tucson, Counsel for Appellee.

Law Offices of Cornelia Wallis Honchar, P.C., By Cornelia Wallis Honchar, Tucson, Counsel for Appellant.

OPINION

KELLY, Presiding Judge.

¶ 1 Veronica Sanchez–Equihua appeals from her convictions and sentences for two counts of possession of a narcotic drug for sale and one count of possession of drug paraphernalia. She argues her constitutional right to compulsory process was violated because a term in her codefendants' plea agreements prevented them from testifying on her behalf and the trial court erred by failing to compel the witnesses to testify.¹ We vacate her convictions and sentences and remand for a new trial.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding Sanchez–Equihua's convictions and sentences. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App.2013). In September 2011, police discovered powder cocaine and cocaine base in a car driven by Jahziel Gutierrez. Suspecting the drugs had been supplied from an apartment shared by Sanchez–Equihua and her husband Ivan Orantes–Lerma, police searched the apartment the same day. In the kitchen they found cocaine and cocaine base in a lunch bag and a small bag on the counter. They also discovered two drug-ledger notebooks in the apartment. Police did not see Sanchez–Equihua during their surveillance of the apartment, and no residents were home when the apartment was searched.

¶ 3 Sanchez–Equihua, Orantes–Lerma, and Gutierrez were charged with multiple offenses based on the drugs seized that day. Orantes–Lerma and Gutierrez each pled guilty to one count of attempted possession of a narcotic drug for sale and were sentenced accordingly. Both plea agreements included the following “special term”: “Defendant agrees that he/she has no exculpatory information as to any codefendant(s).” ² Each agreement also provided that the defendant waived all double jeopardy and statute of limitations claims, so that “[i]f the defendant fail[ed] to comply with any of the provisions or conditions of th[e] plea agreement at any time before or after sentencing,” the agreement would “become void,” and the state would be “free to prosecute the defendant for all charges.”

¶ 4 Sanchez–Equihua proceeded to a jury trial. The trial court asked the parties to address an issue that had been raised “concerning the codefendant [s'] Fifth Amendment rights,” explaining “both [had] signed pleas indicating they had no exculpatory evidence,” but that “[t]hey now want to exculpate [Sanchez–Equihua].” Counsel for the state did not take a definitive position on whether exculpatory testimony by Orantes–Lerma or Gutierrez would constitute a breach of their agreements, but stated she thought the clauses were material and enforceable. She told the court it was “a legal possibility” the state would seek to withdraw the pleas if they testified, and acknowledged she had conveyed that possibility to codefendants' counsel. Sanchez–Equihua argued the codefendants no longer could validly invoke their Fifth Amendment privilege because their convictions and sentences were final and they had waived their right against self-incrimination in this case.

¶ 5 Orantes–Lerma and Gutierrez appeared before the trial court on the second day of trial. Orantes–Lerma had stated in a presentence report that Sanchez–Equihua “did not know about the drugs.” But his counsel told the court she believed “if [Orantes–Lerma] were to testify on the stand at this point it would be a violation of his plea bargain and the State would be able to withdraw from the plea,” placing him in jeopardy. Orantes–Lerma ultimately invoked his Fifth Amendment privilege “so as not to have to start once again and be tried again.” Gutierrez similarly stated he had decided “[n]ot to testify because [he did not] want to break [his] plea.” The court stated the plea agreement clause was “a legitimate prosecutorial tool ... when anticipating a problem with the codefendant exonerating [an]other defendant post plea and post sentence.” It concluded it could not compel Orantes–Lerma or Gutierrez to testify.

¶ 6 After the jury found her guilty, Sanchez–Equihua was sentenced to concurrent terms of imprisonment totaling three years. This appeal followed.

Plea Agreement Term

¶ 7 Sanchez–Equihua argues the no-exculpatory-information term in her codefendants' plea agreements violated her Sixth Amendment right to compulsory process to call witnesses in her favor. SeeU.S. Const. amend. VI; see alsoAriz. Const. art. II, § 24 (“In criminal prosecutions, the accused shall have the right ... to have compulsory process to compel the attendance of witnesses in his own behalf.”). We review constitutional issues and purely legal questions de novo. State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App.2007).

¶ 8 A criminal defendant has a Sixth Amendment right to “present his own witnesses to establish a defense.” Washington v. Texas, 388 U.S. 14, 18–19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The United States Supreme Court has recognized that the right to offer witness testimony and to compel witnesses' attendance when necessary is so fundamental that it is incorporated into the Fourteenth Amendment's Due Process Clause and therefore applies to the states. Id. at 17–19, 87 S.Ct. 1920. “It is well established that ‘substantial government interference with a defense witness's free and unhampered choice to testify amounts to a violation of due process.’ ” Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir.2005), quoting United States v. Vavages, 151 F.3d 1185, 1188 (9th Cir.1998); see also Webb v. Texas, 409 U.S. 95, 97–98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).

¶ 9 The state emphasizes that a witness's Fifth Amendment right to refuse to testify can “trump” a defendant's Sixth Amendment right to compel the witness's testimony. State v. Carlos, 199 Ariz. 273, ¶ 18, 17 P.3d 118, 123 (App.2001). We agree, and Sanchez–Equihua concedes that this is an accurate statement of law. However, it does not answer the issue presented in this case. Sanchez–Equihua does not, as the state suggests, argue she should have been able to compel the codefendants to waive their Fifth Amendment privilege. Instead, she contends the state impermissibly used its power to substantially interfere with their decision whether to testify.

¶ 10 Arizona case law has not addressed directly whether the specific plea agreement term challenged in this case violates a defendant's Sixth Amendment rights. However, in State v. Fisher, 176 Ariz. 69, 859 P.2d 179 (1993), our supreme court addressed the validity of a similar plea agreement condition that compelled a witness to testify consistently with a previous statement.

¶ 11 In that case, defendant James Fisher and his wife, Ann, both had been charged with murder. Id. at 71, 859 P.2d at 181. Ann signed an agreement allowing her to plead guilty to a reduced charge if her testimony at James's trial did “not vary substantially in relevant areas [from] statements previously given investigative officers.” Id. At James's trial, Ann invoked her Fifth Amendment rights and refused to testify. Id. At a later hearing on James's motion for a new trial, Ann testified about conflicting statements she had made about whether she or James had killed the victim. Id. at 72, 859 P.2d at 182. She stated she had invoked her Fifth Amendment right at his trial based equally on her counsel's advice and on her desire to preserve her agreement with the state. Id.

¶ 12 The Fisher court concluded that, although a plea agreement may properly be conditioned upon truthful and complete testimony, “consistency provisions,” including the one contained in the wife's agreement, were unenforceable. Id. at 73, 859 P.2d at 183. It first noted the state's “ethical responsibility to ‘scrupulously avoid any suggestion calculated to induce the witness to suppress or deviate from the truth, or in any degree to affect his free and untrammeled conduct when appearing at the trial or on the witness stand.’ ” Id., citing State v. Fisher, 141 Ariz. 227, 244 n. 5, 686 P.2d 750, 767 n. 5 (1984)and ABA Canons of Prof'l Ethics 39. And it pointed out that consistency provisions “taint the truth-seeking function of the courts by placing undue pressure on witnesses to stick with one version of the facts regardless of its truthfulness” and “frustrate the jury's duty to determine the credibility of the witness.” Id. at 74, 859 P.2d at 184. The court acknowledged that, although Ann had not testified at James's trial, she arguably “was prevented from supplying evidence helpful to the defendant by reason of the improper ... provision.” Id. It cited with approval cases from other jurisdictions holding that “due process prohibits a plea agreement from conditioning leniency upon anything other than truthful and complete testimony,” and ultimately concluded “the prosecution should have bargained with Ann only for truthful and accurate testimony.” Id. at 73, 74, 859 P.2d at 183, 184.

¶ 13 In State v. Rivera, 210 Ariz. 188, ¶ 1, 109 P.3d 83, 84 (2005), our supreme court clarified that a plea-agreement term avowing that a previous statement was true did not violate due process when the agreement also required truthful testimony. The court determined Rivera's rights were adequately protected because the witnesses' plea agreements in his case “neither compel[led] the witnesses to disregard their oaths of truthfulness nor b[ound] them to a particular script or result.” Id. ¶ 18. It found that, under the terms of the agreement, the witness had a “paramount obligation to testify truthfully” and encouraged the state to ensure...