Not For Publication See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County No. CR20094042001 The Honorable Terry L. Chandler, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix and Nicholas Klingerman, Assistant Attorney General, Tucson Counsel for Appellee
Altfeld & Battaile, P.C., Tucson By Robert A. Kerry Counsel for Appellant
Judge Espinosa authored the decision of the Court, in which Presiding Judge Kelly and Judge Eckerstrom concurred.
¶1 After a jury trial, Joshua Leon was found guilty of second-degree murder and sentenced to an aggravated, eighteen-year prison term. On appeal, he argues the trial court erred by permitting his cellmate to testify at trial and by denying his motion for a new trial based on gang-related references at trial, which he contends caused juror apprehension and misconduct. For the following reasons, we affirm in part and vacate in part.
Factual and Procedural Background
¶2 "We view the evidence in the light most favorable to upholding the jury's verdict." State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App. 2007). One evening in October 2009, Maxine S., Amina R., and Kalette M. approached Leon's girlfriend, Claudia R., on a corner in South Tucson. The women asked to buy drugs and, when Claudia agreed, they proceeded to beat and rob her. Claudia yelled for Leon and, as he approached, the three women fled. Leon pursued them and when the women stopped running, he punched one or more of them and stabbed Maxine in the chest. Maxine's heart was punctured and she later died. The weapon was not recovered.
¶3 After being charged with first-degree murder, Leon was convicted and sentenced as described above and now appeals. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶4 Leon first argues the trial court erred by denying his motion to dismiss or to preclude testimony of his former cellmate, Elvin L. Leon and Elvin were housed together from March 22 to April 11, 2011. On Friday, April 8, Elvin telephoned his attorney, K. Sweeney, an assistant public defender, and said he had information about "a murder." Sweeney met with Elvin on Sunday, April 10, and Elvin told her he wanted to be a witness against Leon and requested a meeting with prosecutors.
¶5 According to Elvin, Sweeney told him he "needed to know the people, the places and the names[, ] . . . to have specifics." At some point during the meeting, Sweeney realized that Leon was a former client. Sweeney testified she had served as "second chair" in Leon's defense against the current charges "for probably the first two weeks, " before the public defender's office withdrew due to a conflict. That office, with D. Edminson-O'Brien as Leon's appointed attorney, had represented Leon for approximately two months from November 2, 2009 to January 5, 2010.
¶6 Sweeney made arrangements for Elvin to meet with prosecutors on Monday, April 11, the day before Leon's trial was scheduled to begin. At the meeting, Sweeney sat with Elvin and sometime that day, according to Elvin, informed him she would not be able to continue to represent him "and that the public defender's office would [not] be able to represent [him] any longer because they had handled something in Mr. Leon's behalf." Sweeney denied telling Elvin any details about Leon's case, which Elvin confirmed. Later that day, the prosecution informed counsel for Leon that the state intended to introduce Elvin as a witness, and the following morning Leon's attorney orally moved to preclude Elvin's testimony. When the motion was denied, Leon requested a continuance, which was granted.
¶7 Leon subsequently moved to dismiss the case or preclude Elvin's testimony, contending his constitutional right to counsel had been violated by Sweeney's conduct. He asserted the prosecution ignored Sweeney's conflict in its "rush to get [Elvin] signed up before the trial was to start" despite its duty to see "a defendant's rights are not thoroughly trampled, even when the defendant's [former] attorney is blind to those rights." Leon maintained that "fundamental fairness . . . dictat[ed] dismissal of the charges as the only fair remedy."
¶8 After a hearing on Leon's motion at which both Sweeney and Elvin testified, the trial court found that Sweeney had "violat[ed her] ethical responsibilities" and made "a serious mistake." However, it explicitly found no wrongdoing by the prosecution. "The Court [did] not believe [the prosecutor] remembered that the Public Defender's office was involved as counsel for the defendant at some point, nor would the State have necessarily known or remembered that Sweeney was specifically representing the defendant." The court decided dismissal was "not an appropriate sanction in a case of this magnitude, " and noted, "the remedy isn't to dismiss a murder case against Mr. Leon because ...