Opinion
No. 1 CA-CR 19-0394
06-16-2020
STATE OF ARIZONA, Appellant, v. CINDY KAY FULTON, Appellee.
COUNSEL Yavapai County Attorney's Office, Prescott By Glen M. Asay Counsel for Appellee MayesTelles PLLC, Phoenix By Mark Mendoza Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300CR201801244
The Honorable Patricia A. Trebesch, Judge Retired
VACATED AND REMANDED
COUNSEL Yavapai County Attorney's Office, Prescott
By Glen M. Asay
Counsel for Appellee MayesTelles PLLC, Phoenix
By Mark Mendoza
Counsel for Appellant
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge James B. Morse Jr. joined. PERKINS, Judge:
¶1 The State of Arizona appeals the superior court's dismissal of its prosecution with prejudice. Because the record does not provide sufficient support for dismissal with prejudice, we vacate the superior court's order and remand the matter for further proceedings consistent with this decision.
FACTS AND PROCEDURAL HISTORY
¶2 The facts and procedural history relevant to the issue on appeal are not disputed. On October 5, 2015, the State charged Fulton by direct complaint with fraudulent schemes and artifices, a class 2 felony, and theft, a class 5 felony, for offenses occurring on or between August 28, 2012, and July 17, 2013. The State obtained a warrant for Fulton's arrest.
¶3 The State alleged that Fulton had misappropriated funds from a local gymnastics booster club for which Fulton had served as treasurer. The State initiated its investigation of Fulton in August 2013, after the treasurer who succeeded Fulton reported to law enforcement that he discovered accounting discrepancies during her tenure. Over a two-year period while conducting its investigation, law enforcement attempted unsuccessfully to contact Fulton several times. After the State filed a direct complaint against Fulton in October 2015, it made no attempt to serve her. While Fulton was traveling through a Colorado airport, law enforcement discovered the active warrant and arrested Fulton on April 21, 2018.
¶4 The superior court conducted Fulton's initial appearance on May 14, 2018. Thereafter, Fulton received several continuances of the preliminary hearing, including a request to travel out of state. For each continuance, Fulton waived the applicable time requirements for a preliminary hearing under Rule 5.1 of the Arizona Rules of Criminal Procedure.
¶5 On August 29, 2018, the State indicted Fulton with the same charges alleged in the direct complaint. The superior court held Fulton's arraignment on September 17, 2018. Following arraignment, Fulton received several continuances of pretrial hearings, and time was excluded from Rule 8 speedy trial calculations for each continuance in accordance with Rule 8.4. Fulton filed a motion to dismiss with prejudice for post-indictment delay on January 28, 2019, arguing that the State violated her constitutional right to a speedy trial. A trial date had not yet been scheduled when Fulton filed the motion, and one was not scheduled subsequently.
¶6 In the motion to dismiss, Fulton contended that the "extraordinary two and [a] half year delay" between the filing of the direct complaint and her arrest constituted "inexcusable" neglect and violated her constitutional right to a speedy trial. Fulton asserted that the State "failed to exercise due diligence" in commencing its prosecution considering that she resided at the same address during that time; she maintained a valid driver's license with current information; she was employed during that time; and the State made no attempt to inform her of the charges or serve the warrant. She also argued that the delay caused "irreparable prejudice" for which the only remedy was dismissal with prejudice. The State responded that Fulton was responsible for some of the delay and that she failed to show prejudice.
¶7 At oral argument on Fulton's motion, the superior court stated that it considered the "Doggett factors" to reach its decision. See Doggett v. United States, 505 U.S. 647 (1992). Under Doggett, the superior court found that the delay between the filing of the complaint and arrest was significant; that the reason for the delay may "only be attributed to the actions of the government"; and it assumed Fulton demanded a speedy trial.
¶8 Regarding whether the delay prejudiced Fulton, the superior court initially expressed "concerns about the issue of prejudice." After noting that the alleged offenses "took place in August of 2012 through July of 2013," the court stated:
[G]iven the nature of this case, given the fact that this might be a paper-intensive kind of case, the fact that the - this much time has elapsed and the reasons are the responsibility of the government, I do find there is prejudice to the defendant.
¶9 The superior court then granted the motion. The State timely appealed. We have jurisdiction under A.R.S. sections 12-120.21(A)(1), 13-4031, and -4032(1).
DISCUSSION
I. Post-Indictment Delay
¶10 The State argues that the superior court erred by granting Fulton's motion to dismiss with prejudice for post-indictment delay. We review the superior court's order granting a defendant's motion to dismiss with prejudice for abuse of discretion or "for the application of an incorrect legal interpretation." State v. Lemming, 188 Ariz. 459, 460 (App. 1997) (citations omitted). We review constitutional and legal determinations de novo. State v. Davolt, 207 Ariz. 191, 201, ¶ 21 (2004).
¶11 A defendant has a constitutional right to a speedy trial. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24.
¶12 Fulton suggests that her "right to a speedy trial was triggered when the State filed its Direct Complaint against her on October 5, 2015." The State did not dispute this contention in its response to Fulton's motion before the superior court. The superior court also adopted the position that Fulton's constitutional speedy-trial right attached when the State filed its direct complaint, stating without objection by either party:
With regard to the Doggett factors, there can be no doubt that there was a significant delay between the date the offenses were charged and the date the defendant was apprehended. So we have from October of '15 to April of '18.
¶13 The collective assumption that Fulton's constitutional right of speedy trial attached when the State filed its direct complaint is wrong. The filing of a direct complaint does not trigger a defendant's constitutional right to a speedy trial; the right attaches when a defendant is formally accused by information or indictment or is arrested and held to answer for the charges. United States v. Marion, 404 U.S. 307, 313, 320 (1971); see also State v. Medina, 190 Ariz. 418, 420-21 (App. 1997) (holding that a defendant's right to a speedy trial does not attach until a person is charged by indictment or is held to answer following the filing of a complaint and distinguishing the formal accusation of being held to answer from the informal filing of a complaint); McCutcheon v. Superior Ct., 150 Ariz. 312, 316 (1986) (citing Marion, 404 U.S. at 320).
¶14 Fulton's constitutional right to a speedy trial attached when she was formally accused and held to answer by indictment on August 29, 2018. Medina, 190 Ariz. at 421. The post-indictment delay was not, as the superior court found, two and a half years fully attributable to the State and no constitutional speedy-trial violation occurred. Doggett, 505 U.S. at 652 n.1; Barker v. Wingo, 407 U.S. 514, 530 (1972). The superior court erred by granting Fulton's motion. See Davolt, 207 Ariz. at 201, ¶ 21; see also State v. Chapple, 135 Ariz. 281, 297 n.18 (1983) (holding that a court abuses its discretion when it gives reasons for its action that are "clearly untenable, legally incorrect, or amount to a denial of justice") (citation omitted).
¶15 Fulton's reliance on several "due diligence" cases (namely, Snow v. Superior Court, 183 Ariz. 320 (App. 1995); Humble v. Superior Court, 179 Ariz. 409 (App. 1993); and Duron v. Fleischman, 156 Ariz. 189 (App. 1988)) to argue that the State was obligated to serve Fulton with the arrest warrant is unavailing. Snow, Humble, and Duron each involved an indicted defendant and support the proposition, in varying contexts, that the State must exercise due diligence to locate an absentee defendant after an indictment is issued to bring the defendant to trial. Snow, 183 Ariz. at 322-24; Humble, 179 Ariz. at 412-17; Duron, 156 Ariz. at 190-92. Because Fulton had not been indicted, these "due diligence" cases do not apply.
II. Pre-Indictment Delay
¶16 On January 23, 2020, we issued an order directing the parties to file simultaneous briefs addressing two supplemental issues: (1) whether the superior court erred in finding constitutionally impermissible post-indictment delay based on the pre-arrest and pre-indictment time period; and (2) whether we should affirm the superior court's ruling based on pre-indictment delay or violation of procedural speedy trial rights under Arizona Rule of Criminal Procedure 8.2. We agree with the State's position in its supplemental brief that Fulton's motion is more properly analyzed for pre-indictment delay concerns under Medina and Marion than for post-indictment delay.
¶17 "Separate and apart from any speedy trial rights, 'the Due Process Clause has a limited role to play in protecting against oppressive delay.'" Lemming, 188 Ariz. at 462 (quoting United States v. Lovasco, 431 U.S. 783, 789 (1977)). The statute of limitations serves as a defendant's primary protection against stale prosecutions. State v. Broughton, 156 Ariz. 394, 397 (1988). "To establish that pre-indictment delay has denied a defendant due process, there must be a showing that the prosecution intentionally delayed proceedings to gain a tactical advantage over the defendant or to harass him, and that the defendant has actually been prejudiced by the delay." Id.; see Lemming, 188 Ariz. at 462 ("Arizona courts have interpreted Marion and Lovasco to require that a defendant show intentional delay by the prosecution to obtain a tactical advantage, and actual and substantial prejudice as a result of the delay.") (citations omitted).
¶18 Rule 16.4 of the Arizona Rules of Criminal Procedure generally authorizes the superior court to dismiss a prosecution, and it requires the superior court to dismiss without prejudice "unless the court finds that the interests of justice require that the dismissal be with prejudice." Ariz. R. Crim. P. 16.4(d). A dismissal with prejudice must be based on "a particularized finding that to do otherwise would result in some articulable harm to the defendant." State v. Wills, 177 Ariz. 592, 594 (App. 1993); see also State v. Gilbert, 172 Ariz. 402, 404 (App. 1991). General findings such as fading memories or lost evidence due to lapse of time are insufficient. State v. Dunlap, 187 Ariz. 441, 451-52 (App. 1996); State v. Granados, 172 Ariz. 405, 407 (App. 1991). This harm cannot be mere annoyance or inconvenience from delay but must actually impair the defendant's ability to defend against the charge. Gilbert, 172 Ariz. at 405; see also In re Arnulfo G., 205 Ariz. 389, 391, ¶ 9 (App. 2003) ("The type of harm that will justify dismissal with prejudice is a harm that would actually impair the accused's ability to defend against the charges."). Mere passage of time is insufficient to establish prejudice. Dunlap, 187 Ariz. at 450-51 (citations omitted).
¶19 Applying these principles here, Fulton describes the length of delay between the filing of the complaint and arrest as "inexcusable" and criticizes the State for offering no explanation. Fulton did not assert—to the superior court or on appeal—that the State intentionally delayed the proceedings to gain a tactical advantage or harass her. In granting Fulton's motion for post-indictment delay, the superior court found that the State was responsible for the delay, but it did not find bad faith or, more specifically, that the State intentionally delayed to gain a tactical advantage or harass. Broughton, 156 Ariz. at 397. A due process violation based on pre-indictment delay requires intentional delay. Broughton, 156 Ariz. at 397; see also State v. Lacy, 187 Ariz. 340, 346 (1996) (rejecting defendant's claim that "unnecessary and unjustified" pre-indictment delay of more than eight years sufficiently established intentional delay to gain a tactical advantage or harass).
¶20 After establishing intentional delay, a defendant challenging pre-indictment delay must show actual and substantial prejudice. Lacy, 187 Ariz. at 346; see also Gilbert, 172 Ariz. at 405 (holding that a superior court may not dismiss a prosecution with prejudice based solely on annoyance, inconvenience, or ongoing incarceration). The superior court found prejudice to Fulton resulted from the "nature of the case" that "might be a paper-intensive kind of case" and the amount of time that elapsed. Fulton suggests that the "uniquely specific nature of this case" and the "totality of the delay" resulted in prejudice, but she did not introduce any evidence regarding prejudice in the trial court. All parties and the court previously missed the distinction between pre- and post-indictment delay in this case. Rather than conducting a pre-indictment delay analysis in the first instance, we remand so that the trial court may allow Fulton to provide evidence supporting a finding of pre-indictment delay should she choose to press that claim.
¶21 At oral argument before this court, the State repeatedly asserted that Fulton's failure to respond to police requests for an interview between 2013 and 2015 justified law enforcement's failure to serve the complaint between 2015 and 2018. We fail to see how Fulton's pre-complaint actions can provide any justification for the post-complaint delay. Moreover, while law enforcement is certainly entitled to pursue an interview during an investigation, it should go without saying that a defendant is not obligated to cooperate with law enforcement or respond to such interview requests. See generally, U.S. Const., amend. V ("No person shall . . . be compelled in any criminal case to be a witness against himself . . . ."); Ariz. Const., art. 2, § 10. Fulton could not forfeit her due process protections against pre-indictment delay by availing herself of this constitutional protection and declining to be interviewed by police.
CONCLUSION
¶22 For the foregoing reasons, we vacate the superior court's order dismissing the prosecution with prejudice and remand for further proceedings consistent with this decision.