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State v. Pedroza-Perez

Supreme Court of Arizona

August 9, 2016

State of Arizona Appellee,
Julio Pedroza-Perez, Appellant.

         Appeal from the Superior Court in Pima County The Honorable Christopher C. Browning, Judge No. CR20132784-001

         Memorandum Decision of the Court of Appeals, Division Two No. 2 CA-CR 2014-0168 Filed August 12, 2015

          Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Jennifer M. Perkins (argued), Assistant Solicitor General, Joseph T. Maziarz, Section Chief Counsel, Amy Pignatella Cain, Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys for State of Arizona

          Steven R. Sonenberg, Pima County Public Defender, Rebecca A. McLean (argued), Assistant Public Defender, Tucson, Attorneys for Julio Pedroza-Perez

          JUSTICE BRUTINEL authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES TIMMER and BOLICK joined.



         ¶1 In this marijuana-smuggling case, Julio Pedroza-Perez notified the court before trial that he intended to raise a duress defense by testifying that armed smugglers had forced him to carry the drugs. Reasoning that Pedroza-Perez might change his mind about testifying, the trial court precluded him from mentioning the duress defense or his related anticipated testimony in his opening statement. We hold that the trial court erred in so limiting Pedroza-Perez's opening statement, and therefore vacate the court of appeals' decision and remand to allow that court to consider whether the error was harmless.

         I. BACKGROUND

         ¶2 In June 2013, two "coyote" smugglers led Pedroza-Perez and two others through the desert from Mexico into Arizona. The group met two more smugglers who gave them several bales of marijuana to carry. Later, Border Patrol agents and sheriff's deputies spotted the group. When the officers approached, however, they found only Pedroza-Perez, sitting under a tree with several backpacks containing bales of marijuana. The others escaped. Pedroza-Perez was arrested and charged with importation of marijuana, transportation of marijuana for sale, and possession of drug paraphernalia.

         ¶3 Pedroza-Perez gave notice of a duress defense. The State moved in limine to preclude the defense on the grounds that it was "not supported by the facts." The defense countered that Pedroza-Perez would testify at trial that armed men had forced him to carry the marijuana. After a hearing, the trial court precluded Pedroza-Perez from raising the duress defense or describing any anticipated duress-related testimony in his opening statement. If Pedroza-Perez testified at trial, the court ruled, then the defense could argue duress in closing.

         ¶4 Before trial, Pedroza-Perez moved for clarification of the trial court's ruling. In support, he filed a sworn affidavit stating that he had crossed the border with the help of coyote smugglers, whom he agreed to pay upon reaching Phoenix. After crossing the border, he averred, the armed smugglers seized his possessions and threatened to harm him or his family if he did not carry the marijuana. Pedroza-Perez again sought to include his duress defense and the supporting facts in his opening statement. The trial court reiterated its ruling, finding that the only evidence of duress would come from Pedroza-Perez's own testimony and that he could decline to testify, leaving the defense without any support. As a result, the court ruled, "unless and until this issue is established in the record by testimony, counsel will not be permitted to suggest, argue, claim or otherwise advise the jury of Mr. Pedroza-Perez's claim of duress."

         ¶5 Complying with the court's order, the defense did not mention duress in its opening statement, stating only that the State's witnesses were not "present for the other half of the story." Pedroza-Perez testified consistent with the facts outlined in his affidavit. Defense counsel argued duress in closing argument, and the trial court instructed the jury on the duress defense. The jury found Pedroza-Perez guilty of transportation of marijuana and possession of drug paraphernalia but acquitted him on the importation charge. Pedroza-Perez was sentenced to prison and timely appealed.

         ¶6 The court of appeals affirmed. State v. Pedroza-Perez, 2 CA-CR 2014-0168, at *3 ¶ 12 (Ariz. App. Aug. 12, 2015) (mem. decision). It found that although Pedroza-Perez produced an affidavit in support of the duress defense and avowed that he would testify, the trial court acted within its discretion in determining that "such assertion lacks significance . . . because [he] can change his mind at any time and decide not to testify." Id. ¶ 11 (quoting the trial court ruling). This ruling, the court of appeals found, was consistent with prior cases indicating that opening statements should not include "statements which will not or cannot be supported by proof." Id. ¶¶ 10-11 (quoting United States v. Dinitz, 424 U.S. 600, 612 (1976) (Burger, C.J., concurring) and citing State v. Bible, 175 Ariz. 549, 601-02, 858 P.2d 1152, 1204-05 (1993)).

         ¶7 Because the proper scope of an opening statement is a recurring issue of statewide importance, we granted review. In its briefing before this Court, the State conceded that the trial court erred in precluding defense counsel from mentioning in opening statement the duress defense and Pedroza-Perez's anticipated testimony, but argued that the error was harmless. We have ...

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