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Brailsford v. Foster

Court of Appeals of Arizona, First Division

March 14, 2017

THE HONORABLE GEORGE H. FOSTER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, STATE OF ARIZONA, Real Party in Interest.

         Petition 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

          Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Patricia K. Norris joined.


          McMURDIE, Judge

         ¶1 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.


         ¶2 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 call.

         ¶3 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.

         ¶4 Petitioner was charged with second-degree murder. A Maricopa County Superior Court Judge, acting as the magistrate, presided over a preliminary hearing.[1] 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.

         ¶5 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 testify.

         ¶6 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.

         ¶7 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.

         ¶8 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.

         ¶9 Petitioner filed a motion for a new finding of probable cause pursuant to Arizona Rule of Criminal Procedure 5.5[2] 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.


         ¶10 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).

         ¶11 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. ...

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