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State ex rel. Montgomery v. Garcia

Court of Appeals of Arizona, First Division

November 26, 2013

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner,

Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Petition for Special Action from the Superior Court in Maricopa County No. CR2011-153595-001 SE The Honorable Jeanne Garcia, Judge

Maricopa County Attorney, Phoenix By Gerald R. Grant Counsel for Petitioner

Janelle A. McEachern, Chandler Counsel for Real Party in Interest

Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Margaret H. Downie joined.



¶1 This special action arises out of the superior court's decision precluding all of the state's evidence of a defendant's admissions to both police and store employees that she shoplifted as a sanction for a purported discovery violation. For the following reasons, we accept jurisdiction and grant relief.


¶2 In September 2011, the real party in interest, Jennifer Quintana (defendant), allegedly left a Sears store with four bottles of perfume that she had not paid for. She was stopped and questioned by Sears loss prevention employees who had observed her via security cameras putting the perfume in her purse. Defendant admitted to the Sears employees that she had stolen the perfume in order to sell it, and she signed two pages of the Sears loss prevention report prepared by the Sears employees. On page two of the report she signed next to a statement that she "admit[ted] to the theft of the cash/merchandise listed above" (four bottles of perfume); she also signed page four which stated at the top, "Quintana also admitted to Loss Prevention that reason for theft was to sell items."

¶3 The Sears employees called Mesa Police and provided them with a copy of their report, but the copy given was not the one signed by defendant. The signed report remained in the store's internal records. Police read defendant her Miranda rights and she admitted to police that she had stolen the perfume to sell it. The police provided the prosecutor's office with the unsigned report.

¶4 The state charged defendant with one count of shoplifting with two or more predicate convictions, a class 4 felony.[1] The state made a plea offer: plead guilty with one prior with an open sentencing range of 2.25 years to 7.5 years. Defendant sought a deviation to the plea offer but the state rejected the deviation request and the plea offer expired. The state filed an information adding the allegation that defendant committed the offense while she was on probation and that she had two prior felony convictions. The state made another plea offer for 4.5 years, which defendant rejected in October 2012.

¶5 In February 2013, two days before trial, the prosecutor interviewed the two Sears employees and discovered the existence of the signed report. The prosecutor immediately disclosed the signed report to defense counsel. The prosecutor then filed a motion in limine requesting that the court allow the state to introduce into evidence the signed report. Defendant filed a response requesting that the signed report be suppressed because the state knew or should have known of the existence of the signed confession, and requesting additional sanctions including dismissal of the indictment. Defense counsel argued that "[h]ad [defendant] been aware that the State possessed her signed confession, she would have accepted the 4.5 sentence, " (the last plea offer made by the state). Defendant also filed a motion for a voluntariness hearing/Miranda violation asking the court to determine the voluntariness of her statements to both police and the Sears employees. The February trial date was continued to March 11, 2013.

¶6 The trial court held a hearing on March 1, 2013. At the hearing, defense counsel admitted that he was aware that defendant made oral admissions to the Sears employees.[2] The trial court, citing Arizona Rule of Criminal Procedure 15.8 and Rivera-Longoria v. Slayton, 228 Ariz. 156, 264 P.3d 866 (2011), found that the signed admissions were material, that the state failed to timely provide them, and that defendant's decision on the plea offer was materially impacted. The court advised defendant to "ascertain the offer made at RCC and further advise what sanction is requested." Subsequently, defendant filed a motion for sanctions, requesting the following: dismissal of the case with or without prejudice, preclusion of any admissions made by defendant, or allowing the state to no longer allege that defendant committed the offense while on probation. The state opposed defendant's request for sanctions.

¶7 The trial court heard argument on the request for sanctions in May 2013. At the conclusion of the hearing, the court ordered the parties to file additional briefing on whether the signed report had been within the prosecution's control and whether the state had waived the issue. The court clarified its earlier ruling, stating that the unsigned Sears report was not material and would be ...

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