from the Superior Court in Pima County The Honorable
Christopher C. Browning, Judge No. CR20132784-001
Decision of the Court of Appeals, Division Two No. 2 CA-CR
2014-0168 Filed August 12, 2015
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
R. Sonenberg, Pima County Public Defender, Rebecca A. McLean
(argued), Assistant Public Defender, Tucson, Attorneys for
JUSTICE BRUTINEL authored the opinion of the Court, in which
CHIEF JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and
JUSTICES TIMMER and BOLICK joined.
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.
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.
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.
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."
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
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
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 ...