Opinion
2 CA-CR 2022-0161
06-03-2024
The State of Arizona, Appellee, v. Arnold John Martinez Jr., Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee Zachary Law Group PLC, Mesa By Jessica Zachary Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20191179001 The Honorable Brenden J. Griffin, Judge.
COUNSEL
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Emily Tyson-Jorgenson, Assistant Attorney General, Tucson Counsel for Appellee
Zachary Law Group PLC, Mesa By Jessica Zachary Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, Judge:
¶1 Arnold Martinez appeals from his sixteen convictions and sentences for sexual conduct with a minor under the age of fifteen. His sole claim on appeal is that the trial court erred in denying his motion to continue the trial due to the unavailability of his preferred expert witness. As explained below, we reject that claim and, thus, affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the trial court's rulings and the jury's verdicts. State v. Rose, 246 Ariz. 480, ¶ 3 (App. 2019). In 2011, Arnold began forcing his five-year-old step-granddaughter, M.I., to participate in sex acts with him and threatening her to keep his conduct secret. The abuse continued into 2015, when M.I. was eight. She reported the abuse to her mother for the first time when she was nine years old. The police became involved, and M.I. underwent three forensic interviews.
¶3 In 2019, a grand jury charged Martinez with seventeen counts of sexual conduct with a minor under fifteen. A jury trial was initially set for January 2022. In July 2021, the state filed a list of potential witnesses, including Dr. Wendy Dutton.
¶4 Shortly before the date set for trial, M.I. disclosed additional acts of abuse by Martinez. On the morning trial was scheduled to begin, the trial court granted Martinez's motion for a continuance in light of the state's late disclosure. In April 2022, the trial court set a new trial date for mid-September 2022. In June 2022, the state filed a supplement to its list of potential witnesses, adding Amy Heil.
¶5 In early August 2022, Martinez filed a supplemental disclosure indicating his intent to call Dr. Paul Simpson as a witness to testify regarding "his opinion on the forensic interviews." On the same day, Martinez filed a motion to continue the trial. His sole basis for the requested continuance was that Simpson-a forensic psychologist whose testimony Martinez claimed was "crucial to presenting a full defense"-was unavailable during the September 2022 trial dates due to a prior commitment lecturing on forensic psychology to officers of the United States Marine Corps. Martinez argued that, because he had only recently retained Simpson, he had been unaware of the scheduling conflict at the April status conference during which the trial was rescheduled for September.
¶6 In mid-August 2022, the trial court held a hearing on Martinez's motion to continue. Defense counsel explained that, after the state had disclosed its new expert in June, his co-counsel interviewed her and determined that an expert would be necessary to rebut some of her statements. He further explained that the scheduling conflict was not discovered until after Dr. Simpson had been retained. Defense counsel stated, "we do need to have Dr. Simpson" in order to "defend Mr. Martinez adequately." No further detail was provided regarding Simpson's particular expertise or his expected testimony.
¶7 The state urged that Heil was "a very similar expert as [Dr.] Dutton," who had become unavailable when the trial was rescheduled to September 2022. It questioned whether the June 2022 disclosure had been a change sufficient to justify "suddenly . . . needing an expert in Dr. Simpson" because the state's new expert would be essentially "the same child expert" as the one previously disclosed in July 2021. The state maintained that it was "the same disclosure"-"a different person, yes," with "slightly less experience than Wendy [Dutton], but she does the same thing. And the testimony is quite similar."
¶8 The state further objected to the continuance on the grounds that this was "a much older case," trial had already been continued, the victim's parents objected to another continuance, and preparation of the now-teenaged victim had already begun. The state believed that denying the continuance would better allow the victim to "get going for the rest of the school year." Finally, the state requested that, if the trial court were to grant the continuance, trial be rescheduled for February 2023 at the earliest in order to allow the same prosecutor to try it, given her four years of involvement with the child victim.
¶9 When asked whether the substance of the state's disclosure was the same, defense counsel indicated that there had been "less need to bring in somebody to refute" Dr. Dutton, given her "track record," including a number of critical appellate court decisions potentially useful for impeachment purposes. He explained that "[i]t's not the same with Ms. Heil," leading the defense to conclude it would be necessary "to bring in an expert to explain to the jury there is a counterargument to the information she is giving."
¶10 The trial court then inquired whether defense counsel had checked with Dr. Simpson about his availability for the already-scheduled trial prior to retaining him as an expert. Defense counsel responded that he was not sure whether his colleague, who had been "struggling to find someone," had done so, and that Martinez had been "scrambling to put the money together." The state then advised the court that it had suggested the possibility of Simpson participating electronically but that it appeared "he would be unable to put the time he needed into this trial."
¶11 The trial court denied Martinez's motion to continue and affirmed the September trial date. The court explained its reasoning as follows:
One, this case is older. It has been continued a number of times. The State tells me they're not available to try it any time sooner than February. The disclosure from the State that prompted the expert seems to be relatively substantially the same. And I think if the defendant wants to hire an expert at the late date, it's incumbent upon the defendant to try and find somebody who doesn't have a conflict with our trial dates.
¶12 In early September 2022, Martinez filed a supplemental disclosure indicating that he intended to call Dr. Richard Samuels at trial to testify regarding "his opinion on the forensic interviews"-the same disclosure Martinez had made regarding Dr. Simpson. Before trial, Samuels was provided with transcripts of M.I.'s three forensic interviews, as well as one conducted with her younger brother.
¶13 On the morning of the first day of trial, the state filed a motion to preclude Dr. Samuels from testifying about the forensic interviews or his opinion on the validity of M.I.'s allegations. The state argued that Samuels lacked relevant specialized knowledge and experience regarding the forensic interviewing of children and that his testimony would confuse the jury, be prejudicial, and not be based on reliable principles and methods. The state further indicated concern regarding Samuels's understanding of the case material due to his mischaracterization of the witnesses during his pretrial interview. After hearing argument from the parties, the trial court denied the motion, without prejudice to the state's ability to raise specific objections during trial.
¶14 On day four of trial, the state filed a motion asking the trial court to reconsider its denial of the motion to preclude Dr. Samuels from testifying or, in the alternative, to first allow voir dire of Samuels for the court to "clarify any limitations to his testimony as he has not previously testified in a child sex abuse trial setting." The court denied the state's motion, affirming its prior ruling.
¶15 Dr. Samuels then testified. When asked by defense counsel what he does for work, Samuels responded as follows:
Well, if I'm asked to do an evaluation of a client, I will read all of the case material. It's very important to have the case material as available to review. Now, in this case, I didn't. I'm a cold expert, so I'm just talking about the area in general. So, I don't know too much about this case. But normally, I would learn everything that I could about the case. The state immediately objected.
¶16 At the ensuing bench conference, the state argued that, having been provided with "all of the forensics," Dr. Samuels was not-as he had just told the jury-a cold expert. Defense counsel then stated he could "treat him as a cold expert." He further offered to "clarify" with Samuels that he had been sent case materials and "does know what was said during the forensic interviews." The trial court overruled the state's objection but noted that Samuels's comment would limit his ability to testify about certain topics. During the remainder of his testimony, Samuels presented as a cold expert. Defense counsel did not clarify with him that he had, in fact, reviewed the content of the forensic interviews or any other information specific to this case.
¶17 On the sixth day of trial, the jury found Martinez guilty of sixteen counts of sexual conduct with a minor under fifteen and acquitted on one count. With regard to each conviction, it found the state had proven beyond a reasonable doubt that the victim was twelve years old or younger at the time of the offense.
¶18 Martinez filed a motion for new trial, arguing that he had not received a fair and impartial trial due to the trial court's denial of his motion to continue to allow for Dr. Simpson's participation. The state responded, urging that the motion be denied. It argued that Martinez had chosen to call Dr. Samuels over the state's repeated objection and that he "was not deprived of a fair and impartial trial" or otherwise prejudiced merely because his strategy of calling Samuels "did not work out as [he] had hoped or intended." The court summarily denied the motion, adopting the state's reasoning. It further explained that, at the August 2022 hearing on the motion to continue the jury trial, Martinez had "conceded that he originally chose an expert (Dr. Simpson) without first confirming that the expert was available for the then-existing trial date that had been set months prior." The court then sentenced Martinez to sixteen consecutive terms of life in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
¶19 Martinez contends the trial court erred in denying his motion to continue the jury trial to allow Dr. Simpson to testify as an expert witness. He further argues that he was "clearly prejudiced by his inability to call Dr. Simpson at trial"-prejudice that was not cured by his "scrambling" to retain Dr. Samuels, "the only expert in the field available during the trial dates." Martinez characterizes Samuels's trial testimony as "wholly ineffective."
¶20 The decision whether to grant or deny a continuance "is within the discretion of the trial court" and "will only be disturbed upon a showing of a clear abuse of such discretion and prejudice to defendant." State v. Amaya-Ruiz, 166 Ariz. 152, 164 (1990); see also State v. Nadler, 129 Ariz. 19, 22 (App. 1981) (whether to grant continuance due to "absence of even a material witness is well within the trial court's discretion"). Our rules of criminal procedure allow a trial court to continue a trial "only on a showing that extraordinary circumstances exist and that delay is indispensable to the interests of justice." Ariz. R. Crim. P. 8.5(b). "[T]he unavailability of a key witness may constitute an extraordinary circumstance under this rule, justifying a continuance." State v. Vasko, 193 Ariz. 142, ¶ 11 (App. 1998). However, when a scheduling conflict can be "foreseen and avoided," a continuance may not be warranted. Id.
This rule was amended effective July 1, 2023, after the trial had occurred in this case. See Ariz. Sup. Ct. Order R-22-0035 (Dec. 8, 2022). Although the newer version of the rule adds a discrete section requiring a court deciding a motion to continue a trial date to "consider the victim's views and the right of the victim to a speedy disposition of the case," the version in effect at the time of the trial court's ruling here likewise required the court to "consider the rights of . . . any victim to a speedy disposition of the case." Id.
¶21 Here, the trial court based its denial, in part, on Martinez's failure to ensure that his preferred expert would be available for already-rescheduled trial dates when retaining him. In that regard, this case is similar to State v. Heise, 117 Ariz. 524, 526 (App. 1977). There, we concluded the trial court had abused its discretion in finding extraordinary circumstances warranting a continuance when, on the first day of trial, the state sought a delay to allow a key vacationing witness to appear. Id. at 525-26. Our ruling turned on the fact that "the sole reason" for the scheduling conflict was "the failure of the prosecutor to keep track of its trial schedule and availability of witnesses," resulting in a conflict that could easily have been foreseen. Id. at 526.
¶22 Martinez notes, correctly, that the prosecution in Heise had been advised of the key witness's vacation schedule before the trial was rescheduled but failed to timely object. Id. at 525-26. Here, in contrast, Martinez sought to retain an expert witness after the state had designated Heil in June 2022-after the April status conference at which trial was scheduled for September, when Martinez had not yet planned to retain an expert, did not know of Dr. Simpson's scheduling conflict, and could not have objected. But, as the trial court explained, the state's June 2022 disclosure of Heil that prompted Martinez to obtain an expert appeared to be "relatively substantially the same" as the state's July 2021 disclosure of Dr. Dutton. Even assuming sufficient variance to justify Martinez's belated retention of a rebuttal expert, the court reasonably concluded that a defendant seeking to hire an expert a few months before trial has an obligation to attempt to find one who is available for established trial dates.
¶23 "The explanation a defendant provides to the trial court to justify a request for a continuance constitutes a critical factor in determining whether the trial court abused its discretion in denying the request." State v. Lamar, 205 Ariz. 431, ¶ 31 (2003). Martinez did not advise the trial court that Dr. Simpson-in particular and as opposed to other possible experts- was critical to his case. See Heise, 117 Ariz. at 526 (unavailable witness "indispensable" for prosecution because he "was the only witness capable of testifying as to cause of death" of victim). Nothing in Martinez's motion seeking the continuance or his argument at the hearing on that motion indicated that Simpson was uniquely qualified or irreplaceable. Although Martinez stated in general that he had been "struggling to find" a qualified and available expert, he did not indicate to the court that-without Simpson-he would be out of equally effective options. He did not advise the court, as he now argues on appeal, that he would be "unable to hire a competent expert in the field" for the September 2022 trial dates.
¶24 After Martinez had retained Dr. Samuels as a substitute, the trial court twice rejected the state's efforts to preclude him from testifying. When arguing in response to the state's motion before the court, Martinez did not indicate any trepidation regarding Samuels or the slightest concern that he was unqualified or otherwise unacceptable as compared to Dr. Simpson. It was not until his motion for new trial-after Samuels had provided testimony that was "diametrically opposed to his expected testimony"-that Martinez indicated to the trial court that he had been forced to obtain an expert he deemed inadequate due to the denial of his request for a continuance. Not until this appeal did Martinez argue that Simpson's area of expertise is a "niche area," experts in which "are hard to come by." And not until his reply brief did Martinez claim that Simpson "was irreplaceable by another expert witness." Having failed to make such arguments before the trial court when seeking the continuance to allow for Simpson's participation at trial, Martinez cannot now point to them in support of his contention that the court abused its discretion in refusing to grant that continuance. Cf. State v. Lopez, 217 Ariz. 433, ¶ 6 (App. 2008) (issue forfeited, absent fundamental error, when trial court had no opportunity to consider it).
In particular, Martinez argued in his motion for new trial that, after the denial of the requested continuance, he had "made phone calls to a number of experts who specialize in forensic interviews, and determined the only expert available for the trial date was Dr. Richard Samuels." He claimed he had been "forced to find a substitute expert witness for trial"- to "scramble to find a replacement"-and that Samuels "was not selected based on his credentials, but based on his availability." And he argued that the "only rational explanation for [Samuels's] inexplicable testimony" is that the seventy-nine-year-old clinical psychologist "suffers from a cognitive impairment that interfered with his ability to remember the work he had performed and material he had [reviewed] in this case."
¶25 As our supreme court has observed, it is "axiomatic that a motion for a continuance is directed to the discretion of the trial court, and that court's ruling will not be disturbed absent a clear abuse of discretion." State v. Hein, 138 Ariz. 360, 368 (1983). The trial court is afforded such discretion "because it is the only unbiased party in a position to observe the proceeding" and thus the "only party in a position to judge the inconvenience of a continuance to the litigants, counsel, witnesses, and the court, and further is the only party in a position to determine whether there are 'extraordinary circumstances' warranting a continuance and whether 'delay is indispensable to the interests of justice.'" Id. (quoting Ariz. R. Crim. P. 8.5(b)); see also State v. Lukezic, 143 Ariz. 60, 70 (1984) ("The trial judge should have some discretion in deciding what are extraordinary circumstances on the particular facts of each case.").
¶26 Here, in addition to Martinez's failure to ensure that the expert he retained was available for the already-scheduled trial dates, the trial court considered the age of the case, the fact that it had already been continued, and the state's avowal that an additional continuance would result in postponement to at least February 2023. These considerations are supported by the record, and they reflect the court's consideration of the victim's right to a speedy disposition of the case-a mandatory consideration under Rule 8.5, Ariz. R. Crim. P. Examining all the facts, including the information provided to the court and the reasons given in its rulings on Martinez's motion to continue and motion for new trial, we are "satisfied that the trial court perceived the salient factors and evaluated them in a manner within its proper zone of discretion." Hein, 138 Ariz. at 369.
¶27 Moreover, to succeed on appeal, Martinez must demonstrate that he was prejudiced by the trial court's denial of his motion to continue. See State v. VanWinkle, 230 Ariz. 387, ¶ 7 (2012); see also Nadler, 129 Ariz. at 22 (trial court's denial of continuance will not be disturbed unless both abuse of discretion and prejudice "are clearly established"). Although his motion for new trial and briefs on appeal contain various claims regarding the testimony Dr. Simpson might have provided if the trial had been continued to allow for his participation, Martinez has not provided an offer of proof regarding Simpson's expected testimony regarding this case in particular. See Nadler, 129 Ariz. at 22 (no abuse of discretion in trial court's denial of continuance when defendant's argument that witness would have given exculpatory evidence "not supported by any affidavit or by the record except for counsel's argument"); see also State v. Foster, 121 Ariz. 287, 289 (App. 1978) (appellant failed to establish that denial of motion for continuance due to absent witness was prejudicial abuse of discretion requiring reversal given, inter alia, "questionable nature of the proposed testimony"). The record therefore does not support Martinez's argument that, but for the court's denial of a continuance, he would have presented an expert whose testimony "would have impacted the verdict in this case" by "pointing out factors in false allegations that were present in this case, [which] would have undoubtedly led the jurors to question the credibility of the victim." See VanWinkle, 230 Ariz. 387, ¶ 14. Thus, even if the trial court had abused its discretion by denying the motion to continue, Martinez's appeal would fail due to his inability to establish prejudice.
In light of this failure, we cannot meaningfully apply the factors set forth in State v. Foster, 121 Ariz. 287, 289 (App. 1978), and State v. Reynolds, 123 Ariz. 117, 118 (App. 1979), many of which require that the expected substance of the unavailable witness's testimony be established. See State v. Becerill, 124 Ariz. 535, 537 (App. 1979) (noting that case may present circumstances distinguishable from those in Foster and Reynolds). Having made no offer of proof regarding Dr. Simpson's expected testimony, Martinez's arguments regarding these factors is largely speculative.
¶28 Finally, Martinez briefly contends that his motion for a continuance "should have been granted as a matter of right." He cites, in particular, his due process rights under the United States and Arizona constitutions, including the rights to present a complete defense and to call witnesses in his favor.
¶29 Even the improper denial of a motion for a continuance "is generally not a constitutional claim." 17 C.J.S. Continuances § 3 (Mar. 2023 update). Here, we have found no error in the trial court's denial of Martinez's motion to continue the trial. Regardless, "[t]o determine whether the denial of a continuance violated a defendant's constitutional rights, we must examine the circumstances of the case," Amaya-Ruiz, 166 Ariz. at 164, viewing the denial "in the context of a case's history," Lamar, 205 Ariz. 431, ¶ 28. Of particular import are "the reasons presented to the trial judge at the time the request is denied." 17 C.J.S. Continuances § 3.
¶30 In this case, the denial of Martinez's motion to continue resulted in him not being able to call his preferred expert witness. At the time of the denial, Martinez had not informed the trial court that Dr. Simpson, in particular and as opposed to other possible experts, was key to his defense. And the court allowed Martinez, over the state's repeated objection, to call a different expert who he indicated was expected to provide the same kind of testimony as Simpson. Martinez also elicited relevant testimony from the state's expert, called five additional witnesses, and testified in his own defense. Thus, the circumstances of this case establish that, even if Martinez would have preferred to call a different expert witness, he was able to present a complete defense and call witnesses in his favor. See U.S. v. Sheffer, 523 U.S. 303, 308 (1998) (defendant's right to present relevant evidence "is not unlimited, but rather is subject to reasonable restrictions" to accommodate other legitimate interests in criminal trial process).
Disposition
¶31 For the foregoing reasons, we affirm Martinez's convictions and sentences.