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Appeal
from the Superior Court in Pima County, No. CR20151813001,
The Honorable Janet C. Bostwick, Judge. REVERSED AND REMANDED
Mark
Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief
Counsel, By Karen Moody and Alexander M. Taber, Assistant
Attorneys General, Tucson, Counsel for Appellee
Scott
A. Martin, Tucson, Counsel for Appellant
Chief
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Eppich and Judge Espinosa concurred.
OPINION
ECKERSTROM,
Chief Judge:
Page 994
[¶1]
Patrick Dansdill appeals from his convictions and sentences
for first-degree felony murder and attempted armed robbery.
We reject his claims that he was vindictively prosecuted and
that the state presented insufficient evidence to support the
charge of attempted armed robbery. However, the prosecutor
presented an improper argument during his summation, and the
state has not proven that error was harmless beyond a
reasonable doubt. We therefore reverse Dansdills convictions
and sentences and remand this case for a new trial.
Factual and Procedural Background
[¶2]
We view the facts in the light most favorable to upholding
Dansdills convictions and sentences. State v.
Delgado, 232 Ariz. 182, ¶ 2, 303 P.3d 76 (App. 2013). In
early 2014, Dansdill loaned $ 300 to M.L., his long-time
friend and former girlfriend. By May 2014, M.L. had not
repaid the debt and became aware that Dansdill was looking to
collect the money.
[¶3]
In the early morning hours of May 17, M.L. was home with her
boyfriend, R.G., and her cousin, M.G., who was visiting. All
three were using drugs, including methamphetamine. They heard
a loud knock on the door and both M.L. and R.G. asked who was
there. The person at the door first responded in a joking
manner that he was "Julio." Then Dansdill, who had
left a downtown bar shortly before, identified himself by
name and said, "[Y]ou guys owe me money." M.L., who
recognized Dansdills voice, corrected him, saying only she
owed him the money. R.G. opened the door and quickly closed
it. Dansdill warned, "I could make this easy or it could
be a problem." Dansdill then asked R.G. to open the
door, indicated he came "in peace," and said he
would "put it away." But then a gun was fired
through the door. The bullet hit R.G. in his arm and traveled
into his chest. He died at the scene from the wound.
[¶4]
Shortly after the incident, the state charged Dansdill with
second-degree murder. Almost a year later, the state obtained
a second indictment charging Dansdill with two counts: (1)
first-degree felony murder, "or in the
alternative," second-degree murder; and (2) attempted
armed robbery.
[¶5]
After a jury trial, Dansdill was found guilty of felony
murder and attempted armed robbery. The trial court sentenced
him to life in prison for the felony murder conviction and a
concurrent term of 7.5 years for the attempted armed robbery
conviction. After moving unsuccessfully for a new trial,
Dansdill timely appealed. We have jurisdiction pursuant to
A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Prosecutorial Vindictiveness
[¶6]
Dansdill first contends the trial court erred in denying his
motion to dismiss for vindictive prosecution. In particular,
Dansdill argues he made a prima facie showing that
the first-degree felony murder charge in the second
indictment raised a presumption of
vindictiveness,[1] and that the state should have been
required to justify its actions. Dansdill asks us to vacate
his convictions and dismiss all charges with prejudice,
including the original indictment.[2] "We review rulings
on motions to dismiss for vindictive prosecution for an abuse
of discretion." State v. Mieg, 225 Ariz. 445, ¶
9, 239 P.3d 1258 (App. 2010).
[¶7]
"Prosecutorial vindictiveness," or governmental
retaliation against a defendant for exercising a
constitutional or statutory right, is a violation of due
process. State v. Brun, 190 Ariz. 505, 506, 950 P.2d
164, 165 (App. 1997). Although it may be proven objectively
where there is evidence of actual vindictive motivation, a
defendant may instead "rely on a presumption of
vindictiveness
Page 995
if the circumstances establish a realistic likelihood of
vindictiveness. " Mieg, 225 Ariz. 445, ¶ 11,
239 P.3d 1258 (quoting Blackledge v. Perry, 417 U.S.
21, 27, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974)). "If a
defendant makes a prima facie showing that the charging
decision is more likely than not attributable to
vindictiveness by the prosecutor, the burden shifts to the
prosecutor to overcome the presumption by objective evidence
justifying the prosecutors action. " Id. ¶ 12
(citation omitted) (first quoting Alabama v. Smith,
490 U.S. 794, 801, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989),
then quoting United States v. Goodwin, 457 U.S. 368,
n.8, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).
[¶8]
To make the requisite prima facie showing in the
pretrial context, a defendant must do more than prove that
the state increased charges after the defendant exercised a
legal right. See Brun, 190 Ariz. at 507,
950 P.2d at 166 (quoting United States v. Meyer, 810
F.2d 1242, 1246 (D.C. Cir. 1987)). Additional facts must also
exist, id. at 507, 950 P.2d at 166, which, combined
with the increased charges, "support a determination
that the states action is more likely than not explainable
only as an effort to penalize [the] defendant for asserting
his legal right[s]," Mieg, 225 Ariz. 445, ¶ 21,
239 P.3d 1258.
[¶9]
In this case, the state candidly explained on multiple
occasions that it decided to obtain the second indictment in
response to a defense theory that became apparent during
pretrial interviews. In particular, the prosecutor stated
that defense interviews had revealed "a theory or at
least hints of a theory" that, although Dansdill had
been at the door on the night of the incident, he was not the
person who pulled the trigger. The prosecutor further
explained that the way the case was initially charged
"played to the strengths of that defense," so he
made the strategic decision to obtain the felony murder
indictment in order to eliminate the defense.[3]
[¶10]
Although criminal defendants have a due process right to
develop their defenses, including by confronting witnesses
and conducting pretrial interviews, due process does not
prevent the state from responding strategically when a
defendants pretrial efforts reveal a defense the state did
not anticipate. See Goodwin, 457 U.S. at
382, 102 S.Ct. 2485 ("A prosecutor should remain free
before trial to exercise the broad discretion entrusted to
him to determine the extent of the societal interest in
prosecution. An initial decision should not freeze future
conduct" because "the initial charges filed by a
prosecutor may not reflect the extent to which an individual
is legitimately subject to prosecution.").
[¶11]
Dansdill asks us to ignore the states explanations,
insisting they are "specious" because any
third-party culpability defense that would apply to the
original second-degree murder charge would apply equally to
the attempted armed robbery and felony murder charges in the
second indictment. But the question of the prosecutors
credibility regarding his motivation was one for the trial
judge, not for this court. See, e.g., State v.
Estrada, 209 Ariz. 287, ¶ 2, 100 P.3d 452 (App. 2004).
Furthermore, the supervening indictment relieved the state of
its burden of showing that the shooter possessed the mens
rea to commit second-degree murder, under circumstances
that suggest the possibility of an unintentional shooting.
For this reason, the new charges provided the state a
tangible strategic advantage.
[¶12]
Dansdill insists the charging decision raised the presumption
of vindictiveness because no new evidence or procedural
developments justified the increased charges.
Page 996
This argument fails. The reason the United States Supreme
Court has declined to adopt an "inflexible presumption
of prosecutorial vindictiveness in a pretrial setting"
is that, before trial, "the prosecutors assessment of
the proper extent of prosecution may not have
crystallized." Goodwin, 457 U.S. at 381, 102
S.Ct. 2485. As the Court recognized, a prosecutor can
legitimately re-charge a defendant in the pretrial context
for various reasons, including when "[i]n the course of
preparing a case for trial ... he simply ... come[s] to
realize that information possessed by the State has a broader
significance." Id. ; see also
Meyer, 810 F.2d at 1246-47 (prosecutors "often
make their initial charging decisions prior to gaining full
... appreciation of the facts involved in a given case"
and "before analyzing thoroughly a cases legal
complexities," and "further factual investigation
or legal analysis" can be a legitimate reason to
increase charges).
[¶13]
Here, relying primarily on Mieg, the trial court
found that the second indictment was not "presumptively
vindictive or ... facially vindictive given the circumstances
of this case." It implicitly found that Dansdill had
failed to show "a realistic likelihood" that the
state added the charges of felony murder and attempted armed
robbery "motivated solely by a desire to deter and
punish" Dansdill for exercising his rights to defend
himself, rather than a desire to "strengthen its
case." Mieg, 225 Ariz. 445, ¶¶ 17-19, 239 P.3d
1258.
[¶14]
We expect that a defendant will formulate defenses through
pre-trial investigation, and "[i]t is unrealistic to
assume that a prosecutors probable response" to such
efforts— which are "an integral part of the
adversary process in which our criminal justice system
operates"— will be "to seek to penalize and
to deter." Goodwin, 457 U.S. at 381, 102 S.Ct.
2485. In this case, Dansdills position has been that defense
interviews "completely changed the posture of the
States second-degree murder case." In that context, it
was not an abuse of discretion for the trial court to accept
the states explanation that it had responded strategically
to improve its chances of obtaining a conviction, not to
penalize Dansdill or deter other defendants from aggressively
defending themselves. See Brun, 190 Ariz.
at 507, 950 P.2d at 166 (no presumption of vindictiveness
because "unrealistic" to presume "routine
assertion of procedural rights" prompted retaliation
from the state).
[¶15]
Dansdill points to additional facts that he contends should
have compelled the trial court to find a prima facie
showing of vindictiveness. These include the states failure
to immediately dismiss the original second-degree murder
indictment upon the issuance of the second indictment, the
states dismissal of the original indictment without
prejudice after Dansdill raised the question of vindictive
prosecution, and the prosecutors attempt to proceed
immediately to trial on the new first-degree murder charge
using the date set for the initial second-degree murder
charge. The trial court was best situated to determine
whether these factors indicated vindictive motivation on the
part of the prosecution or instead reflected a desire to
bring the case to trial as expeditiously as possible.
[¶16]
Finally, Dansdill argues that, because the trial court
repeatedly found that the increased charge "did
have the appearance of vindictiveness to [Dansdill],"
the court necessarily applied the wrong legal standard when
finding no presumption of vindictiveness. We agree with the
state that the courts mere acknowledgement of Dansdills
frustration does not reflect the application of an incorrect
legal standard. Here, unlike in State v. Tsosie, the
states explanation for why it sought the increased charges
provided an "objective indication that would allay a
reasonable apprehension by the defendant that the more
serious charge was vindictive." 171 Ariz. 683, 688, 832
P.2d 700, 705 (App. 1992).
[¶17]
For all these reasons, we find no abuse of discretion in the
trial courts denial of Dansdills motion to dismiss for
vindictive prosecution.
Sufficiency ...