Court of Appeals of Arizona, First Division, Department B
ELDRIDGE GITTENS (1); JASON NEIL NOONKESTER (2); JUSTIN MCMAHAN (3); ZACHARY BAXTER (4); JOSE ALEJANDRO ACUNA (5); RUDOLPH JOHN CANO, JR. (6); ABEL HIDALGO (7); DENNIS LEVIS (8); JONATHAN RAY COLE (9); CRAIG DEVINE (10) RYAN WILLIAM FOOTE (11); DARNELL RUENA JACKSON (12); JAMES CLAYTON JOHNSON (13); THOMAS RILEY (14); JASPER PHILLIP RUSHING (15); JESUS BUSSO-ESTOPELLAN (16); MANUEL ANTONIO GONZALES (17), Petitioners,
THE HONORABLE JOSEPH KREAMER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA ex rel. WILLIAM MONTGOMERY, Real Party in Interest.
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Maricopa County Superior Court Nos. CR2010-007912-002 DT(1) CR2011-138281-001 DT(2) CR2012-139607-001 DT(3) CR2012-007399-001 DT(4) CR2011-140108-001 DT(5) CR2009-160953-001 DT(6) CR2011-005473-001 DT(7) CR2011-008004-001 DT(8) CR2011-151833-001 DT(9) CR2010-168096-001 DT(10) CR2011-150239-001 DT(11) CR2010-007912-001 DT(12) CR2010-048824-001 DT(13) CR2011-008004-002 DT(14) CR2010-007882-001 DT(15) CR2011-133622-001 DT(16) CR2012-154880-001 DT(17)
SAMUEL A. THUMMA, Judge
This matter was considered by Presiding Judge Peter B. Swann and Judges Maurice Portley and Samuel A. Thumma during a regularly scheduled conference held on October 22, 2013. After consideration, and for the reasons that follow,
IT IS ORDERED in the exercise of its discretion, the court declines special action jurisdiction.
I. Procedural Background.
Each Petitioner is facing a murder charge in Arizona Superior Court, Maricopa County, and in each case the State has filed a notice seeking the death penalty. No Petitioner has started trial; no Petitioner has been found guilty of murder and the death penalty has not been imposed on any Petitioner. Petitioners moved to dismiss the death penalty allegations, claiming Arizona Revised Statute (A.R.S.) section 13-751 (2013) –- Arizona's death penalty statute -- is unconstitutional because it: (1) fails to genuinely narrow the class of persons eligible for the death penalty; and (2) violates equal protection guarantees, given different approaches to the death penalty by the various counties in Arizona. Petitioners requested an evidentiary hearing on the motion. The superior court received extensive briefing, including supplemental briefing on multiple issues related to the original motion, and received and considered extensive filings and exhibits relating to the motion.
The superior court heard oral argument in January 2013 and May 2013. In considering the motion, the court assumed all facts alleged by Petitioners were true. Having considered these materials, the superior court denied Petitioners' request for an evidentiary hearing and denied Petitioners' motion. The court rejected the narrowing argument, noting "this argument has been previously rejected by the Arizona Supreme Court" in State v. Greenway, 170 Ariz. 155, 164, 823 P.2d 22, 31 (1991) and State v. Hausner, 230 Ariz. 60, 89, n.9, 280 P.3d 604, 633 n.9 (2012). The court rejected the equal protection argument, noting Petitioners "made no argument that the State has acted with discriminatory intent as to any of the" Petitioners and that, in State v. Ovante, 231 Ariz. 180, 185-86, 291 P.3d 974, 979-80 (2013), the Arizona Supreme Court "held that a showing that defendants in Maricopa County are more likely to receive the death penalty than similarly-situated defendants in other counties did not constitute an Equal Protection violation." Petitioners filed this special action, claiming the superior court (1) abused its discretion in denying the request for an evidentiary hearing; (2) erred in rejecting the narrowing argument and (3) erred in rejecting the equal protection argument. The State filed a response opposing the petition.
II. Special Action Jurisdiction.
Special action jurisdiction is highly discretionary, and is generally disfavored when used to consider the denial of a motion to dismiss. Special action jurisdiction is not appropriate "where there is an equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a).
Applying these principles, as noted by the State:
The petition seeks to bar imposition of the death penalty but a jury has not even found Petitioner[s] guilty of first degree murder. And even if a jury does find [them] guilty of first degree murder, it may decline to impose the death penalty. And even if a jury does impose the death penalty, appeal is mandatory in capital cases so Petitioner[s] can raise [their] attacks on the constitutionality of Arizona's death penalty statute on appeal.
In addition, the issues Petitioners raise may be obviated before trial (through plea agreements or otherwise). Accordingly, as to each Petitioner, accepting special action jurisdiction at this time could result in addressing thorny legal issues "on a situation that may never occur." Kool Radiators, Inc. v. Evans, 229 Ariz. 532, 536, ¶ 13, n.6, 278 P.3d 310, 314 n.6 (App. 2012) (citation omitted; discussing ripeness and standing). Moreover, should the death sentence be imposed on any of the Petitioners, that individual retains an equally "plain, speedy, and adequate remedy" by way of direct appeal to the Arizona Supreme Court. See A.R.S. § 13-4031; Ariz. R. Crim. P. 31.2; Neary v. Frantz, 141 Ariz. 171, 177, 685 P.2d 1323, 1329 (App. 1984) ("A remedy does not become inadequate merely because more time would transpire by pursuing a conventional action.").
Addressing the lack of an evidentiary hearing, Petitioners claim appellate review is "illusory if there is no adequate record made in the" superior court. Petitioners, however, raised two constitutional issues and made substantial filings with the superior court. A portion of those filings included in Petitioner's appendix with this court total approximately 560 pages. Similarly, the superior court considered the documents Petitioners filed -- both the actual exhibits and summaries of those exhibits -- and assumed as true all of ...