Appeal
from the Superior Court in Pima County No. CR20151813001 The
Honorable Janet C. Bostwick, Judge
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
¶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 (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 (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 (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 if the
circumstances establish a 'realistic likelihood of
vindictiveness.'" Mieg, 225 Ariz. 445,
¶ 11 (quoting Blackledge v. Perry, 417 U.S. 21,
27 (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
(1989), then quoting United States v. Goodwin, 457
U.S. 368, n.8 (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 (quoting
United States v. Meyer, 810 F.2d 1242, 1246 (D.C.
Cir. 1987)). Additional facts must also exist, id.
at 507, 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.
¶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
("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 (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. 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. 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.
¶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. 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 (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 (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
of the Evidence
¶18
Dansdill next argues the state presented insufficient
evidence to support his convictions for attempted armed
robbery and felony murder with a predicate felony of
attempted armed robbery. Specifically, he maintains there was
no evidence that he intended to take "any property of
another" as required under the robbery statutes. He
urges us to vacate his convictions with prejudice.
¶19
The "question of sufficiency of the evidence is one of
law, subject to de novo review on appeal." State v.
West, 226 Ariz. 559, ¶ 15 (2011). We must decide
whether "any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt." Id. ¶ 16 (quoting State v.
Mathers, 165 Ariz. 64, 66 (1990)). In making this
determination, "we view the evidence in the light most
favorable to sustaining the verdict, and we resolve all
inferences against the defendant." State v.
Davolt, 207 Ariz. 191, ¶ 87 (2004). We, like the
trial court, "may not re-weigh the facts or disregard
inferences that might reasonably be drawn from the
evidence," and we may not find the evidence insufficient
"when reasonable minds may differ." West,
226 Ariz. 559, ¶ 18.
¶20
Dansdill maintains that, even according to the state's
theory of the case, he attempted to use force only to regain
$300 that M.L. indisputably owed him, which was not
"property of another" as required for the
commission of armed robbery as defined in A.R.S. §§
13-1902(A) and 13-1904. His argument finds support in the
reasoning of our supreme court that "a charge of robbery
fails where the attempt is to collect a bona fide
debt, since, to constitute that offense, there must be an
animus furandi and this cannot exist if the person
takes the property under a bona fide claim of
right." Bauer v. State, 45 Ariz. 358, 363-64
(1935); see also State v. Hardin, 99 Ariz. 56, 59
(1965) (affirming Bauer's dicta).
¶21
Since Bauer, however, our legislature revised the
Arizona criminal code to reflect that "property of
another" can include "property in which the
defendant also has an interest." See A.R.S.
§ 13-1801(13) (revised 1978). Our supreme court
"has not yet considered whether the claim of right
defense as enunciated in Bauer v. State survived the
enactment of [that portion of] the new criminal code."
State v. Schaefer, 163 Ariz. 626, 629 (App. 1990).
And as Dansdill points out, this court has recognized the
validity of the defense on multiple occasions since the 1978
revisions, without ever squarely addressing the statutory
change. Most recently, in State v. Flores, we found
it was appropriate for a trial court to instruct a jury as
follows:
If a person takes property from another, even by force, the
person does not commit robbery thereby if he entertains a
good faith belief that he has a claim of right to the
property taken. That is, if the defendant believes he has a
legitimate claim of right to the property, however ill
advised this claim of right may be, by taking the property,
even by force, he does not commit the crime of robbery or
armed robbery.
140 Ariz. 469, 473 (App. 1984). See also State v.
Bosner, 128 Ariz. 95, 96 (App. 1981) (citing
Bauer as providing "the rule in Arizona"
so long as amount claimed is not in dispute); State v.
Lewis, 121 Ariz. 155, 157 (App. 1978) (criticizing but
following Bauer rule).
¶22
The state contends the claim-of-right defense has been
abrogated in full, citing Schaefer, in which the
court reasoned that the defense "encourages disputants
to resolve disputes on the streets through violence instead
of through the judicial system." 163 Ariz. at 629. But
that dicta overlooks that violent efforts to collect a debt
or one's own property, even if not robbery due to a lack
of requisite intent, would still be ...