Appeal from the Superior Court in Cochise County The Honorable Wallace R. Hoggatt, Judge No. CR-201100113
Opinion of the Court of Appeals, Division Two 231 Ariz. 261, 293 P.3d 537 (2013)
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals, Kathryn A. Damstra (argued), Assistant Attorney General, Tucson, for State of Arizona
The Law Office of Robert J. Trebilcock, Robert J. Trebilcock (argued), Phoenix, for Anthony Duran
JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BERCH, VICE CHIEF JUSTICE BALES, JUSTICE BRUTINEL, and JUSTICE TIMMER
¶1 After rejecting a proposed plea agreement, the trial court erroneously ruled that the State could impeach defendant Anthony Duran with statements he made in connection with his change of plea if he testified inconsistently with them at trial. Duran objected to this ruling and asserts it caused him to choose not to testify. We hold that Duran cannot raise the trial court's error on appeal because a defendant must testify to preserve a challenge to a ruling permitting the use of evidence for impeachment.
¶2 The State charged Duran with four felonies relating to an assault. After agreeing to plead guilty to a lesser charge, Duran admitted at a change-of-plea hearing that he was an accomplice. But when he was interviewed for a presentence report, he denied any involvement. The trial court later rejected the plea agreement, and Duran was tried before a jury.
¶3 Duran moved in limine to prevent the State from using at trial statements he made during the change-of-plea hearing. The trial court ruled that the statements would be admissible to impeach Duran if he testified inconsistently with them. Duran did not testify at trial, and the jury found him guilty on all counts.
¶4 Duran moved for a new trial, arguing in part that the trial court erred in ruling that the State could use his change-of-plea statements to impeach him. The court acknowledged that its pretrial ruling directly conflicted with Arizona Rule of Criminal Procedure 17.4(f), which expressly bars the use at trial of statements made at plea proceedings when a plea agreement is rejected or withdrawn. The court denied the motion, however, concluding that because Duran did not testify, it could not determine whether he was "prejudiced or legally harmed" by the error.
¶5 The court of appeals affirmed. State v. Duran, 231 Ariz. 261, 265 ¶ 18, 293 P.3d 537, 541 (App. 2013). The court reasoned that by not testifying at trial, Duran did "not preserve for [appellate] review the pretrial ruling permitting the state to use his change-of-plea statements for impeachment." Id. at 263 ¶ 11, 293 P.3d at 539. In so holding, the court extended the rule of State v. Allie, 147 Ariz. 320, 327, 710 P.2d 430, 437 (1985), which involved impeachment with prior convictions, to rulings permitting impeachment with plea-related statements. Duran, 231 Ariz. at 263 ¶ 11, 293 P.3d at 539. Although noting that Duran had not preserved the issue, id., the court stated that harmless-error review applied, but concluded that Duran's failure to testify "render [ed] this inquiry 'wholly speculative.'" Id. at ¶¶ 14-15 (quoting Luce v. United States, 469 U.S. 38, 41 (1984)).
¶6 We granted review because this case presents a recurring legal issue of statewide importance. We have jurisdiction under Article 6, Section 5(3) of the Arizona ...