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
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.
Margaret H. Downie delivered the opinion of the Court, in
which Acting Presiding Judge John C. Gemmill (Retired) and
Judge Samuel A. Thumma joined.
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.
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.
AND PROCEDURAL HISTORY
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.
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.
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
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.
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.
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
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. 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.
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.
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.
The State timely appealed, and Martinson timely ...