Court of Appeals of Arizona, First Division, Department D
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2009-006785-001 The Honorable Paul J. McMurdie, Judge.
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Alice Jones, Assistant Attorney General Attorneys for Appellee.
The Hopkins Law Office, P.C. Tucson By Cedric Martin Hopkins Attorneys for Appellant.
DIANE M. JOHNSEN, Chief Judge.
¶1 Peter Normann appeals his convictions on two counts of second-degree murder, Class 1 felonies, and one count of manslaughter, a Class 2 felony, arising out of the deaths of three patients who underwent surgery at Normann's medical clinic. We hold the superior court erred in denying Normann's motion to sever the three charges for trial. Because we are unable to conclude the error was harmless, we vacate the convictions and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 Normann is a physician, board-certified in internal medicine, who held a medical license to practice in Arizona at the time of the patients' deaths. Following his graduation from medical school and a period of residency, he worked as an emergency room physician for a number of years. Normann opened his own medical practice in Arizona in 2005.
¶3 Between December 2006 and July 2007, three patients died after suffering complications while undergoing or recovering from cosmetic surgeries performed at Normann's medical clinic. Normann performed the surgeries on two of the three patients. Another doctor performed the surgery on the third patient; Normann assumed responsibility for the patient during the post-surgical recovery period. The medical examiner designated the manner of death in each case as either natural or an accident. The medical examiner determined that R.G., the first victim, died of "an adverse reaction to the medications administered for cosmetic liposuction." The medical examiner found the second victim, A.S., died of "pulmonary fat embolization due to cosmetic surgery procedures." The medical examiner found the third victim, L.R., died from an "[a]dverse reaction to anesthesia/analgesia due to cosmetic surgery procedure."
¶4 Following an investigation prompted by a referral from the Arizona Medical Board, a grand jury returned a three-count indictment against Normann. Count 1 alleged Normann committed second-degree murder by, under circumstances manifesting extreme indifference to human life, recklessly engaging in conduct which created a grave risk of death and thereby caused the death of R.G. on December 12, 2006. Count 2 alleged Normann committed manslaughter by recklessly causing the death of A.S. on April 25, 2007. Count 3 alleged Normann committed second-degree murder by, under circumstances manifesting extreme indifference to human life, recklessly engaging in conduct which created a grave risk of death and thereby caused the death of L.R. on or between July 3 or July 4, 2007.
¶5 At trial, the State presented evidence that Normann caused R.G.'s death by giving him too much Lidocaine for a liposuction procedure, and then, after he went into respiratory and cardiac shock, recklessly depriving him of oxygen by incorrectly intubating him, failing to promptly call 9-1-1 for assistance, and physically preventing paramedics from correcting the faulty intubation. With respect to A.S., evidence was presented that Normann caused her death by inadvertently injecting fat into her bloodstream during a fat augmentation procedure and then, after she stopped breathing, by recklessly depriving her of oxygen by failing to immediately call 9-1-1 or provide proper emergency care, and by failing to inform paramedics or hospital staff of the fat augmentation procedure, which hindered timely recognition and treatment for her condition. As for L.R., evidence was presented that Normann recklessly failed to properly monitor her condition after another doctor performed liposuction on her and then failed to immediately call 9-1-1 when she went into respiratory arrest due to an adverse reaction to the anesthesia, caused a tear in her esophagus when he attempted to intubate her, resulting in pneumoperitoneum (air in her abdominal cavity), and failed to report the attempted intubation to the paramedics or hospital personal, hindering timely treatment. After the jury convicted Normann on all three charges, the superior court sentenced him to consecutive mitigated prison terms of ten years each on the two murder convictions and the presumptive five years' term of incarceration on the manslaughter conviction. We have jurisdiction of Normann's timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2013), 13-4031 (West 2013) and -4033(A)(1) (West 2013).
A. Severance of the Charges.
¶6 Before trial, Normann moved to sever the three charges, asserting he was entitled to severance as a matter of right under Arizona Rule of Criminal Procedure ("Rule") 13.4(b). That rule provides that when offenses have been "joined only by virtue of Rule 13.3(a)(1), " the defendant is entitled to severance "as of right" unless evidence of the other offense or offenses would be cross-admissible if the offenses were tried separately. Ariz. R. Crim. P. 13.4(b). In opposing the motion, the State agreed that joinder of the offenses was based on Rule 13.3(a)(1), but argued severance was not required because evidence related to each charge would be cross-admissible to show knowledge and lack of accident or mistake if the offenses were tried separately. After oral argument, the court denied the motion for severance by minute entry order, stating: "The Court finds the probative value of the evidence concerning Counts 1 and 2 as it relates to Count 3 substantially outweighs the potential for unfair prejudice." Normann renewed the motion to sever at the close of evidence, but the superior court again denied it.
¶7 We review the denial of a motion to sever for abuse of discretion. State v. Prince, 204 Ariz. 156, 159, ¶ 13, 61 P.3d 450, 453 (2003). Moreover, "rules on joinder and severance are intended to further not only liberal joinder but also liberalseverance. Where there is any doubt, it must be resolved in favor of the defendant." State v. Roper, 1 ...