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State v. Medina

Court of Appeals of Arizona, Second Division

March 20, 2018

The State of Arizona, Appellee,
Porfirio Medina, Appellant.

          Appeal from the Superior Court in Pima County No. CR20161982001 The Honorable Sean E. Brearcliffe, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Jonathan Bass, Tucson, and Michael Valenzuela, Phoenix, Assistant Attorneys General Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Sarah L. Mayhew, Assistant Public Defender, Tucson Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Espinosa concurred.


          ECKERSTROM, Chief Judge

         ¶1 Porfirio Medina appeals from his conviction and sentence for possession of a deadly weapon by a prohibited possessor, claiming the trial court erred in precluding his asserted necessity defense. For the following reasons, we affirm.

         Factual and Procedural Background

         ¶2 In April 2016, a detective with the South Tucson Police Department saw Medina standing by a bus bench and recognized him as a parole absconder. He approached Medina and detained him. During that process, Medina told the detective that he had a handgun in his waistband. At that time, Medina had been convicted of a felony and "his right to possess or carry a gun or firearm had not been restored." Medina was convicted as described above and sentenced to an enhanced, presumptive prison term of ten years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).


         ¶3 Medina claims the trial court erred in precluding his necessity defense as a sanction for a disclosure violation. The court disallowed the defense under Rule 15, Ariz. R. Crim. P., finding it had not been timely disclosed. "Absent a showing of abuse by the trial court, we will not disturb the trial court's choice of sanction or its decision not to impose a sanction." State v. Towery, 186 Ariz. 168, 186 (1996).

         ¶4 Under Rule 15.2(b) and (d), [1] a defendant must notify the state of all defenses he intends to present at trial either forty days after arraignment or ten days after the state's Rule 15.1(b) disclosure, whichever is earlier. Medina concedes the disclosure was untimely under this rule, but asserts preclusion was not warranted as a sanction, particularly given that his disclosure was of a newly discovered defense and was provided "at least 7 days before trial, " in accordance with Rule 15.6(c). Likewise, he claims the trial court abused its discretion in ordering preclusion as a sanction without appropriate consideration of the factors discussed in State v. Smith, 123 Ariz. 243, 252 (1979).[2]

         ¶5 As this court has emphasized, "[t]he right to offer the testimony of witnesses, compel their attendance, and present a defense is guaranteed by the Sixth Amendment to the United States Constitution and is a fundamental element of due process of law." State v. Delgado, 174 Ariz. 252, 257 (App. 1993). And, although the compulsory process clause is not a complete bar to the preclusion of defense witnesses, see Taylor v. Illinois, 484 U.S. 400, 402, 414 (1988), Arizona courts have repeatedly disfavored that sanction out of deference not only to a defendant's Sixth Amendment interests, but to pursue the core purposes of our rules of criminal procedure. See Smith, 123 Ariz. at 252; Delgado, 174 Ariz. at 257; cf. State v. Machado, 224 Ariz. 343, ¶¶ 12-13 (App. 2010), aff'd, 226 Ariz. 281, ¶ 26 (2011), and abrogated in part on other grounds as recognized by State v. Nottingham, 231 Ariz. 21, n.4 (App. 2012). Our supreme court has pointedly observed that "[t]he trial court . . . should seek to apply sanctions that affect the evidence at trial and the merits of the case as little as possible, since the Rules of Criminal Procedure are designed to implement, and not to impede, the fair and speedy determination of cases." Smith, 123 Ariz. at 252.[3]

         ¶6 For these reasons, our supreme court has cautioned that witnesses for either the state or the defense should be precluded only "as a last resort." State v. Tucker, 157 Ariz. 433, 440 (1988). To that end, the court has endorsed preclusion as a remedy "only in those cases where other less stringent sanctions are not applicable to effect the ends of justice." Smith, 123 Ariz. at 252. And, it has required trial courts determining the propriety of that sanction to first consider (1) the importance of the precluded evidence to the case, (2) "whether the discovery violation was motivated by bad faith or wilfulness, " (3) "whether the opposing party will be surprised and prejudiced" by the evidence, and (4) "any other relevant circumstances." Tucker, 157 Ariz. at 440, citing Smith, 123 Ariz. at 252. Our supreme court has bluntly concluded that failure to conduct that inquiry "constitutes error." Smith, 123 Ariz. at 252.

         ¶7 Here, nothing in the record demonstrates that the trial court considered the factors listed in Smith. Nor does the record reflect that the court considered any lesser sanction, ...

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