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State v. Martinson

Court of Appeals of Arizona, First Division

September 22, 2016

STATE OF ARIZONA, Appellant/Cross-Appellee,
v.
JEFFREY RICHARD MARTINSON, Appellee/Cross-Appellant.

         Appeal from the Superior Court in Maricopa County Nos. CR 2004-124662-001 SE CR 2012-007335-001 The Honorable Sally Schneider Duncan, Judge

          Maricopa County Attorney's Office, Phoenix By Gerald R. Grant Counsel for Appellant/Cross-Appellee

          Michael Terribile, Attorney at Law, Phoenix By Michael Terribile Co-Counsel for Appellee/Cross-Appellant

          Law Office of Treasure VanDreumel, PLC, Phoenix By Treasure VanDreumel Co-Counsel for Appellee/Cross-Appellant

          Arizona Voice for Crime Victims, Scottsdale By Colleen Clase Co-Counsel for Crime Victim, K.E.

          University of Utah Appellate Clinic, S.J. Quinney College of Law, Salt Lake City, Utah By Paul G. Cassell Co-Counsel/Pro Hac Vice for Crime Victim, K.E.

          Judge Margaret H. Downie delivered the opinion of the Court, in which Acting Presiding Judge John C. Gemmill (Retired) and Judge Samuel A. Thumma joined.

          OPINION

          DOWNIE, JUDGE

         ¶1 The State of Arizona appeals an order dismissing with prejudice first degree felony murder and child abuse charges against Jeffrey Richard Martinson on the basis of prosecutorial misconduct. Martinson cross-appeals from the denial of his motions for judgment of acquittal.

         ¶2 Because the State was erroneously precluded from suggesting at trial that Martinson intentionally killed his son, the fundamental underpinnings for a finding of prosecutorial misconduct sufficient to warrant dismissal with prejudice are not present. We therefore vacate the dismissal with prejudice order and remand to the superior court with instructions to grant the State's motion to dismiss the pending indictment without prejudice. Treating Martinson's cross-appeal as a cross-issue, we deny his requested relief.

         FACTS AND PROCEDURAL HISTORY

         ¶3 Martinson and K.E. are the parents of J.E.M., who was born in July 1999. After their relationship ended in 2000, K.E. obtained legal custody of J.E.M., as well as an order of protection against Martinson. Martinson was awarded visitation with J.E.M.

         ¶4 In August 2004, J.E.M. was with Martinson for a scheduled weekend visit. When Martinson failed to return the child on Sunday evening or return telephone calls, K.E. contacted the police. Police officers entered Martinson's apartment to conduct a welfare check and found him in the master bedroom, unresponsive, with cuts on his wrists. J.E.M. was discovered dead in another bedroom, with a frothy substance coming from his nose. Toxicology tests revealed carisoprodol (a muscle relaxant) and a related metabolite in J.E.M.'s blood. The medical examiner concluded J.E.M.'s death was caused by acute carisoprodol toxicity.

         ¶5 In September 2004, a grand jury returned an indictment (the "2004 Indictment"), charging Martinson with one count of first degree felony murder and one count of child abuse pursuant to Arizona Revised Statutes ("A.R.S.") section 13-3623(A)(1) (A person commits child abuse if, acting knowingly or intentionally, the person, "[u]nder circumstances likely to produce death or serious physical injury . . . causes a child . . . to suffer physical injury."). Child abuse was the predicate felony for the felony murder count. See A.R.S. § 13-1105(A)(2) (a person commits felony murder if he commits child abuse in violation of A.R.S. § 13-3623(A)(1) and "in the course of and in furtherance of the offense" causes death). The State sought the death penalty.

         ¶6 Trial began in July 2011. After the jury was sworn, but before the State's opening statement, defense counsel moved to preclude evidence that Martinson intentionally killed J.E.M. The superior court granted the motion, reasoning that under State v. Styers, 177 Ariz. 104 (1993), alleging child abuse as the predicate felony for felony murder barred the State from arguing that Martinson had intentionally killed J.E.M.

         ¶7 The jury returned guilty verdicts as to both felony murder and child abuse. Jurors could not reach a unanimous decision during the penalty phase, though, resulting in a mistrial for that phase. Martinson moved for a judgment of acquittal based on insufficiency of the evidence or, in the alternative, for a new trial as to his guilt, asserting juror misconduct and trial error. Martinson also alleged prosecutorial misconduct, claiming prosecutors repeatedly violated the court's order precluding evidence of an intent to kill J.E.M.

         ¶8 In March 2012, the superior court denied Martinson's motion for judgment of acquittal but granted his motion for new trial based on juror misconduct and error in admitting expert testimony. In ordering the new trial, the court specifically rejected Martinson's claims of prosecutorial misconduct.

         ¶9 In June 2012, the State obtained a new indictment against Martinson in Maricopa County Case No. CR 2012-007335-001 (the "2012 Indictment"). In addition to alleging felony murder, the 2012 Indictment charged Martinson with premeditated murder. After obtaining the 2012 Indictment, the State moved to dismiss the 2004 Indictment without prejudice.[1] Martinson objected and moved to dismiss the 2012 Indictment instead. The superior court granted Martinson's motion to dismiss the 2012 Indictment and denied the State's motion to dismiss the 2004 Indictment.

         ¶10 The State filed a special action petition challenging the denial of its motion to dismiss the 2004 Indictment. State ex rel. Montgomery v. Duncan, 1 CA-SA 12-0217, 2012 WL 5867379 (Ariz. App. Nov. 20, 2012) (mem. decision). This Court accepted jurisdiction and granted relief, concluding the State had established good cause for dismissing the 2004 Indictment without prejudice. Id. at *5, ¶ 20. We did not, however, "reach the issue of whether good cause would have been lacking if the trial court had determined the State attempted to dismiss the 2004 Indictment in bad faith or to avoid the speedy trial provisions of Rule 8." Id. at ¶ 21. We ruled the superior court could "amend its findings or hold further hearings" if it intended to rely on bad faith. Id.

         ¶11 The superior court subsequently ordered additional briefing and held a hearing to consider whether the State acted in bad faith by seeking to dismiss the 2004 Indictment. The court ultimately ruled that the State had engaged in prosecutorial misconduct and bad faith by, among other things, "deliberately attempting] to secure a conviction based on an uncharged theory" and by "persistently violat[ing] this Court's Styers ruling." Based on its findings of prosecutorial misconduct, the court dismissed the 2004 Indictment with prejudice.

         ¶12 The State timely appealed, and Martinson timely ...


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