for Special Action from the Superior Court in Maricopa County
No. CR2016-004743-001 DT The Honorable George H. Foster,
Judge The Honorable Sam J. Myers, Judge (Magistrate)
Piccarreta Davis Keenan Fidel PC, Tucson By Michael L.
Piccarreta, Jefferson L. Keenan Counsel for Petitioner
Maricopa County Attorney's Office, Phoenix By Amanda M.
Parker Counsel for Real Party in Interest
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Kenton D. Jones and Judge Patricia K. Norris
Philip Brailsford ("Petitioner") petitions this
Court for special action relief, challenging the
magistrate's finding of probable cause. Petitioner argues
the magistrate precluded him from presenting all witnesses
related to his justification defenses, thereby denying him
due process and entitling him to a new probable cause
finding. We accept jurisdiction, but because matters related
to a contested justification defense need not be resolved at
a preliminary hearing, we deny relief.
AND PROCEDURAL BACKGROUND
On January 18, 2016, Petitioner, a Mesa police officer, and
several other Mesa officers responded to an emergency call
from a local hotel. The caller had indicated that someone was
pointing a rifle out of a fifth-floor hotel room. Upon
arrival, Petitioner was assigned as a lethal coverage officer
for the immediate-action team of officers who responded to
The officers found two individuals in the hotel room-a woman
and a man ("D.S.")-and told them to come out of the
room. The woman came out first, followed by D.S. A police
sergeant, Sergeant Langley, instructed them to lie face down
on the hallway carpet, which they did. As instructed by the
sergeant, the woman crawled towards the police officers. An
officer grabbed her and pulled her behind the other officers,
leaving D.S. lying face down in the hallway. The sergeant
instructed D.S. to get on his knees and crawl toward the
officers. The sergeant warned D.S. that if he did not comply
"[there was] a very severe possibility that [he was]
going to get shot." As D.S. crawled toward the officers,
he abruptly put his hand behind his back and, Petitioner shot
and killed D.S.
Petitioner was charged with second-degree murder. A Maricopa
County Superior Court Judge, acting as the magistrate,
presided over a preliminary hearing. The State offered testimony
from Mesa Police Department Detective Sipe. Detective Sipe
testified he responded to the 9-1-1 emergency call, reviewed
the footage of the incident from the body cameras worn by
Petitioner and Officer Doane, and offered his opinion
regarding the tactics employed throughout.
The State rested and the magistrate, after reviewing the
exhibits admitted into evidence including the video from the
body cameras, found that there was probable cause for the
charge. Petitioner proceeded with an offer of proof to rebut
the magistrate's finding of probable cause. Petitioner
offered to call as witnesses Sergeant Langley and Officers
Doane and Jacobs of the Mesa Police Department, and Emanuel
Kapelsohn, an expert in law enforcement use of force. The
magistrate found the issue before him was Petitioner's
state of mind, and whether Petitioner was justified in
shooting D.S. The magistrate, after considering
Petitioner's offer of proof, allowed Sergeant Langley to
Sergeant Langley testified that the woman was taken into
custody and "she was no longer in play." The team
then focused on the man. D.S. was instructed in the same
manner as the woman and told to put his hands in the air;
D.S., instead, put his hands behind his back.
Detective Sipe testified that D.S.'s action of putting
his hands behind his back appeared to be an attempt by D.S.
to be handcuffed. Sergeant Langley disagreed with Sipe and
testified that it appeared D.S. was not understanding the
instructions. Langley said he told D.S. to keep his hands in
the air and start crawling toward the officers. But as D.S.
crawled towards the officers, he stopped and put his right
hand behind his back. Langley believed that the motion was an
indication that D.S. may have been drawing a weapon. Langley
stated that the only reason he did not fire his weapon was
because Petitioner was in his line of fire.
After hearing Petitioner's offer of proof and the
testimony of Sergeant Langley, the magistrate found the offer
of proof and evidence was insufficient to rebut the finding
of probable cause.
Petitioner filed a motion for a new finding of probable cause
pursuant to Arizona Rule of Criminal Procedure
in the superior court, arguing he was denied due process when
the magistrate refused to hear all of the proffered evidence
and refused to consider his justification defenses.
Furthermore, Petitioner argued no credible evidence of guilt
was adduced. The superior court denied the motion and
Petitioner filed this petition for special action.
AND STANDARD OF REVIEW
We have discretion to accept special action jurisdiction and
do so "when statutes or procedural rules require
immediate interpretation, " Escalanti v. Super.
Ct., 165 Ariz. 385, 386 (App.1990), and when a petition
"present[s] a purely legal issue of first impression
that is of statewide importance, " State ex rel.
Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5
(App.2007). See Ariz. R.P. Spec. Act. 8(a).
This petition raises an issue regarding the way a magistrate
is to consider justification defenses presented in a
preliminary hearing, specifically self-defense by a police
officer. See A.R.S. §§ 13-409 and -410. A
challenge to procedures used to establish probable cause
"has no equally plain, speedy, or adequate remedy by
appeal." Chronis v. Steinle,220 Ariz. 559,
560, ¶¶ 3-4 (2009) (probable cause for aggravating
circumstances in capital prosecution); State ex rel.
Berger v. Justice Ct. of Ne. Phoenix Precinct, Maricopa
County,112 Ariz. 24, 25 (1975) (state's challenge
to magistrate order allowing discovery at a preliminary
hearing). Generally, errors at a preliminary hearing must be
remedied before trial; "[o]nce [the] trial is over and
properly completed, a 'nonjurisdictional' error at a
preliminary hearing is lost." State v. Lenahan,12 Ariz.App. 446, 449 (1970), overruled on other grounds
by State v. Sample,107 Ariz. 407, 410 (1971),
disapproved of on other grounds by Mincey v.
Arizona,437 U.S. 385, 403 (1978); State v.
Neese,126 Ariz. ...