Opinion
No. 1 CA-SA 14-0008
02-13-2014
STATE OF ARIZONA, Petitioner, v. THE HONORABLE LISA ANN VANDENBERG, Commissioner of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Commissioner, JASMINE MICHAELLE SHAFER, Real Party in Interest.
Maricopa County Attorney's Office, Phoenix By Lisa Marie Martin Counsel for Petitioner Maricopa County Public Defender's Office, Phoenix By Gerald Michael Bradley Counsel for Respondent
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR2013-448850-001
The Honorable Lisa Ann VandenBerg, Commissioner
JURISDICTION ACCEPTED; VACATED; REMANDED WITH
INSTRUCTIONS
COUNSEL
Maricopa County Attorney's Office, Phoenix
By Lisa Marie Martin
Counsel for Petitioner Maricopa County Public Defender's Office, Phoenix
By Gerald Michael Bradley
Counsel for Respondent
DECISION ORDER
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Donn Kessler and Chief Judge Diane M. Johnsen joined. NORRIS, Judge:
¶1 This special action arises out of an order entered by the superior court precluding Petitioner, the State of Arizona, from introducing at trial recordings of statements made by Real Party in Interest, Jasmine Michaelle Shafer, to a Tempe Police Department detective and to a third party and a recording of an interview conducted by the detective with the third party (collectively, "the recordings"). Having considered the written submissions of the parties, and because the State cannot appeal the superior court's order, we accept special action jurisdiction. See State v. Roper, 225 Ariz. 273, 274, ¶¶ 7-8, 236 P.3d 1220, 1221 (App. 2010) (State may not appeal order barring evidence for alleged disclosure violation). Further, because the superior court precluded the State's use of the recordings at trial without considering the applicable criteria, we vacate the order and remand for further proceedings consistent with this decision.
¶2 On October 17, 2013, a grand jury indicted Shafer on two counts of animal cruelty. Shafer pleaded not guilty, and the court scheduled the initial pretrial conference for December 11, 2013. On November 5, 2013, pursuant to Arizona Rule of Criminal Procedure 15.1(e), Shafer requested the State produce the recordings for examination. On November 7, 2013, the superior court ordered the State to produce the recordings within 20 days. The next day, November 8, 2013, a paralegal of the State mistakenly requested the recordings from the Mesa Police Department, instead of the Tempe Police Department. On December 10, 2013, the day before the initial pretrial conference, the State discovered the mistake. At the December 11, 2013 initial pretrial conference, the superior court ordered the State to produce the recordings to Shafer within ten days. The court also set a status conference in the case for January 3, 2014 and a firm trial date for February 27, 2014, with a "Last Day" of March 29, 2014.
¶3 On January 2, 2014, the day before the scheduled status conference, defense counsel notified the prosecutor that he had not received the recordings. The prosecutor immediately followed up and learned that the Tempe Police Department had lost the State's request for the recordings and the State would need to resubmit its request. The prosecutor advised defense counsel of the problem and the reason for the delay, and explained the Tempe Police Department was "working on it." Later that same day, defense counsel moved for sanctions pursuant to Arizona Rule of Criminal Procedure 15.7 and requested the court preclude the State from using the recordings at trial. Notably absent from the motion was any mention of the communication between counsel that had occurred earlier in the day.
¶4 At the January 3, 2014 status conference, the court addressed the motion for sanctions even though the prosecutor explained she had not yet received a copy of the motion and even though defense counsel had failed to comply with Arizona Rule of Criminal Procedure 15.7(b). The prosecutor explained the Tempe Police Department had lost the State's request for the recordings and asked for an opportunity to respond to the motion "or not exclude the evidence at this time." The prosecutor further stated:
There was a mistake made, for whatever reason the request didn't get to Tempe PD. We're trying to remedy it. It wasn't by any means any willful conduct by the State. There's no malice or any bad conduct. We're not trying to conceal any evidence . . . .After determining the State had failed to comply with the deadlines for producing the recordings, the court granted the motion and precluded the State from using the recordings at trial.
Obviously I'm trying to get these items to Defense as soon as possible. And I will take any steps necessary that the Court finds for me to do that whether it be making an appointment today to have him be able to view the items or I'll make another trip down to Tempe PD to pick it up as soon as possible.
¶5 In its petition, the State argues the superior court abused its discretion in precluding it from using the recordings at trial. We agree. Although we recognize a superior court has great discretion in deciding whether to sanction a party and how severe a sanction to impose, State v. Meza, 203 Ariz. 50, 55, ¶ 19, 50 P.3d 407, 412 (App. 2002) (citation omitted), in exercising that discretion, Arizona Rule of Criminal Procedure 15.7(a) requires the court to consider several factors. Here, the superior court did not do so.
¶6 First, when, as here, a party fails to make disclosure required by Rule 15, Rule 15.7(a) requires the court to impose an appropriate sanction unless the court finds "the failure to comply was harmless." The record contains no indication the superior court considered whether the State's failure to timely produce the recordings was harmless. And, on this point, we note that neither in her motion for sanctions nor at the January 3, 2014 status conference did Shafer argue she had been prejudiced by the delay.
¶7 Second, before imposing sanctions, Rule 15.7(a) requires the court to "take into account the significance of the information not timely disclosed, the impact of the sanction on the party and the victim and the stage of the proceedings at which the disclosure is ultimately made." The record contains no indication the superior court considered any of these factors either.
¶8 Third, before a court may impose a sanction that restricts the evidence at trial or affects the merits of the case, it must inquire whether a less stringent sanction will suffice. Meza, 203 Ariz. at 58, ¶ 37, 50 P.3d at 415. The superior court did not, however, make this inquiry.
¶9 Although the record reflects the State did not comply with the discovery deadlines, the court should not have precluded it from using the recordings at trial without properly considering the criteria outlined above. Therefore, we vacate the court's order and remand for further proceedings consistent with this decision. We note that on January 9, 2014, the State provided the recordings to defense counsel. On remand, the superior court should take into account this fact and, applying the criteria outlined above, reconsider whether to sanction the State and, if it does so, what sanction to impose.
Shafer argues we should decline jurisdiction and/or deny relief because the State has raised facts and arguments in its petition which it did not raise in the superior court. Because Shafer failed to comply with the requirements of Arizona Rule of Criminal Procedure 15.7(b), we find this argument disingenuous.