State v. Dansdill

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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:

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         [¶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 Dansdill’s 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 Dansdill’s 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 Dansdill’s 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

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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 prosecutor’s 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 state’s 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 defendant’s 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 state’s 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 prosecutor’s 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.

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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 prosecutor’s 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 case’s 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 prosecutor’s 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, Dansdill’s position has been that defense interviews "completely changed the posture of the State’s second-degree murder case." In that context, it was not an abuse of discretion for the trial court to accept the state’s 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 state’s failure to immediately dismiss the original second-degree murder indictment upon the issuance of the second indictment, the state’s dismissal of the original indictment without prejudice after Dansdill raised the question of vindictive prosecution, and the prosecutor’s 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 court’s mere acknowledgement of Dansdill’s frustration does not reflect the application of an incorrect legal standard. Here, unlike in State v. Tsosie, the state’s 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 court’s denial of Dansdill’s motion to dismiss for vindictive prosecution.

          Sufficiency ...