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State v. Sahagun-Llamas

Court of Appeals of Arizona, Second Division

January 13, 2020

The State of Arizona, Appellee,
v.
Juan Ramon Sahagun-Llamas, Appellant.

          Appeal from the Superior Court in Pima County No. CR20020728 The Honorable Kenneth Lee, Judge.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Linley Wilson, Assistant Attorney General, Phoenix Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant

          Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Eppich concurred and Judge Espinosa specially concurred in part and dissented in part.

          OPINION

          ECKERSTROM, JUDGE

         ¶1 Juan Sahagun-Llamas appeals from his convictions and sentences stemming from a shooting incident at a Tucson car wash in 2002. We affirm his two drug-related convictions and the concurrent five-year prison terms he is serving for them, which he has not challenged on appeal. However, for the reasons that follow, we vacate his convictions and sentences for aggravated assault, assault, and endangerment and remand for a new trial.

         Factual and Procedural Background

         ¶2 "We review the facts in the light most favorable to sustaining the verdicts and resolve inferences against the defendant." State v. Burns, 237 Ariz. 1, ¶ 72 (2015). In early 2002, an acquaintance named "Chato" asked Sahagun-Llamas to hold a bag of drugs for safekeeping. Two days later, Chato instructed him to bring the drugs to a car wash, where he was to hand them to Chato's brother. Sahagun-Llamas removed the drugs from the bag, hid them in his vacuum cleaner, tucked a pistol in his waistband, picked up his friend R.C., and drove a brown vehicle to the car wash, where he parked in one of the stalls.

         ¶3 Shortly afterward, a "silver blue" vehicle parked in the adjoining stall. Four men exited the car, some of whom were armed. One of the men approached Sahagun-Llamas, identified himself as Chato's brother, and asked for the bag. The men then knocked Sahagun-Llamas and R.C. to the ground, punched them, and pistol whipped them, leaving Sahagun-Llamas with "[a] pretty good size" bleeding abrasion on the side of his face. One of the assailants drove away in the brown car. The others drove away in the "silver blue" vehicle. As they did so, Sahagun-Llamas fired three bullets from his handgun in their direction. He later claimed he did so in self-defense.

         ¶4 R.C. testified that, while he was still on the ground, he heard four or five gunshots but did not know where they came from. Two bystanders reported to police that, when they drove by the car wash, a silver-blue car with its back window shot out "bolted out" into the road shortly before its front-seat passenger stuck a rifle out the window and fired two shots.

         ¶5 A bullet entered the passenger-side windshield of a passing school bus carrying thirteen kindergarten and first-grade students. The bullet struck the bus driver in the elbow and grazed his chest before exiting the open driver-side window. The state argued the bullet that hit the driver and endangered the students was one of the three bullets Sahagun-Llamas had fired. That bullet was never found.[1]

         ¶6 A grand jury charged Sahagun-Llamas with two counts of aggravated assault of the bus driver, one involving use of a deadly weapon and one involving serious physical injury, as well as thirteen counts of endangerment, one for each child on the school bus. In May 2003, at the conclusion of a seven-day trial, the jury found him guilty as charged except for count four-aggravated assault causing serious physical injury-convicting him of the lesser-included offense of simple assault. The trial court then issued a bench warrant for Sahagun-Llamas's arrest, because he had absconded partway through the trial.[2] He was apprehended over thirteen years later, in December 2016, and sentenced to concurrent, presumptive prison terms, the longest of which is 7.5 years.[3] We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

         Missing Transcript

         ¶7 On the fourth day of trial, Sahagun-Llamas called two witnesses: R.C., the only eyewitness who testified regarding the events at the car wash, and Richard Watkins, a ballistics expert. There is no transcript of that day's testimony. The court reporter did not file her notes with the court before leaving the court's employ. In fact, she had stopped filing her notes in all cases six weeks before the date she served as court reporter in Sahagun-Llamas's trial.

         ¶8 Sahagun-Llamas did not learn the transcript was unavailable until June 2017, when the court reporter manager advised that no transcript could be produced because the court reporter had died in August 2007 and had left no notes from which to retroactively reproduce the transcript. Sahagun-Llamas then moved to vacate his convictions and sentences and remand for a new trial, arguing that the lack of the transcript violated his right to a complete record on appeal. In December 2017, we stayed the appeal and re-vested jurisdiction in the trial court "for the limited purpose of permitting the trial court and the parties to attempt to reconstruct the record of day four of the jury trial (April 25, 2003), pursuant to Rule 31.8(f), (g), Ariz. R. Crim. P."[4]

         ¶9 The parties and the judge who presided at the 2003 trial met several times to discuss their efforts to reconstruct the record. In February 2018, defense counsel advised the state that she "did not believe reconstruction of the record would be possible." The state disagreed and, in April 2018, filed a proposed "Narrative Statement of the Reconstructed Record," together with supporting exhibits, to serve as a substitute for the missing transcript. Sahagun-Llamas objected to the state's narrative as "an inaccurate and incomplete account of the actual testimony presented to the jury" on day four of the trial, one he "strongly believes is grossly inadequate for the purposes of his appeal." However, at a hearing on the matter, the trial court approved the narrative, finding "that the record that has been submitted by the State is the most complete and most accurate record that can be constructed under the circumstances" -"the best that can be done given the information that is available to the Court."

         Adequacy of the Reconstructed Record

         ¶10 On appeal, Sahagun-Llamas argues that "the trial court's duty was to determine whether the current record, with or without the State's Narrative Statement, accurately documents what happened on the fourth day of [his] trial." The state counters that the court "acted within its discretion when it approved of the narrative statement" under Rule 31.8(e)(2)(E), which requires the court to consider a proposed narrative statement and any objections thereto and then "settle and approve" the statement.

         ¶11 In State v. Schackart, our supreme court indicated that the procedures set forth in Rule 31.8 require a trial court to take "all reasonable measures to ensure that the record provide[s] a complete account of [a] defendant's trial." 175 Ariz. 494, 498 (1993). There, the court held that the Arizona Constitution requires the record to be sufficient to "afford defendant a meaningful right of appeal." Id. at 498-99 (citing Ariz. Const. art. II, § 24). That right requires a record of "sufficient completeness" for the court to consider any issues potentially raised. Id. at 499 (quoting State v. Moore, 108 Ariz. 532, 534 (1972)). The Schackart court concluded that certain reconstructed trial transcripts satisfied this standard. Id. But those "satisfactory" reconstructions had been produced from court reporter notes, reviewed and corrected by one of the witnesses whose testimony they contained, and checked by the prosecutor for accuracy. Id. at 497, 499. In addition, the trial court had held a hearing to ascertain the integrity of the recreated transcripts, reviewed proposed corrections from defense counsel and the defendant himself, and "issued a detailed order setting out specific corrections" to the transcripts before certifying them as "a fair and accurate representation of what took place in the trial." Id. at 498-99. See also State v. Navarre, 132 Ariz. 480, 482, 484 (1982) (where transcript was unavailable for one day of four-day trial, court made "several minor additions" to prosecution's reconstruction of record for missing day before approving it as "correct and accurate"); In re Navajo Cty. Mental Health No. MH 201600024, 242 Ariz. 437, ¶ 8 (App. 2017) (when jurisdiction is re-vested in trial court for reconstruction of record, superior court "should then 'assist counsel to overcome the loss of the missing records'" (quoting Rodriguez v. Williams, 104 Ariz. 280, 283 (1969))).

         ¶12 In this case, the trial court acknowledged it could not serve as the active referee contemplated by the rule. As the court advised the parties, it had "no memory of what happened that day" and the notes it managed to locate were "not enlightening" because they "just not[ed] that those witnesses [i.e., R.C. and Watkins] appeared and testified, but no details beyond that." The court therefore conceded that "if the Court of Appeals is looking for me to help fill in the record, that's not going to happen."

         ¶13 Nor is the state's narrative the sort of reconstruction we contemplated when re-vesting jurisdiction to permit the trial court and the parties to attempt to reconstruct the record. In Draper v. Washington, the United States Supreme Court held that an adequate appellate record could be supplied in the absence of a court reporter's transcript if the alternative "place[s] before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise," with potentially adequate substitutes including "[a] statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions." 372 U.S. 487, 495 (1963). The state's narrative here bears no resemblance to any of these efforts to create an analog to a transcript. Furthermore, the Arizona Supreme Court has indicated that state rules for reconstructing the record do not contemplate post-hoc preparation of records years after trial. State v. Masters, 108 Ariz. 189, 192 (1972). In particular, it observed that a reconstruction from memory six years after the trial "would probably not be of much aid to the appellate court in making its determination." Id.

         ¶14 Here, a whole day's proceedings that occurred over sixteen years ago, spanning four hours and including the heart of the defendant's evidentiary case, have been reduced to two and one-half pages, a large portion of which contains only a bulleted list of points copied directly from Watkins's two-page written report. The narrative does not provide either a topic-by-topic progression of the witnesses' testimony or independent memories of anyone who was present at the trial. It does not comprehensively recount or recall the important details ...


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